Discrimination when applying: How long must the employer compensate for loss of earnings?

What was it about before the Federal Labor Court?

One applicant was disadvantaged in 2009 because of his age. In previous proceedings, an obligation to pay compensation for future material damage had been established. He later charged around 236,000 euros for income inequalities between 2020 and 2023.

The BAG rejected its appeal. In the meantime, the plaintiff had taken up a job in line with his qualifications with another public employer and had carried it out for several years. According to the press release, the losses claimed later therefore lacked the necessary connection with the discriminatory cancellation. An obligation to pay compensation is not limited from the outset. However, it does not automatically cover every further career development.

Compensation and compensation are different claims

Section 15 AGG distinguishes between material damage and compensation for damage that does not affect assets. Lost earnings fall into the first category. The second is about compensating for the disadvantage itself. A judgment on the calculation of loss of earnings therefore does not answer all questions about possible compensation.

Even the often mentioned limit of three months' salaries is not a general lump sum rate. Section 15 paragraph 2 AGG mentions it for compensation in case of non-employment if the person would not have been hired even if the selection was not disadvantaged. This does not result in an automatic claim to three salaries nor a corresponding upper limit for any material damage.

What those affected should document now

For an examination, the job advertisement, the application, the rejection and the course of the selection process are important first. Record specific statements and save existing messages. Describe facts as precisely as possible, instead of simply judging the outcome as unfair.

Anyone who also claims loss of earnings should present the alleged course without discrimination and actual professional development separately. Which activity would have been considered? What income was actually generated? What other occupations followed? These questions help to build up a claim in a comprehensible way. The answer is not based solely on the salary originally offered.

• Save job advertisement and requirement profile
• Store your application, invitations and cancellations in their entirety
• Note down relevant conversations with date and participants
• Order subsequent employment contracts and income records chronologically

What role do indications and deadlines play?

According to Section 22 AGG, the burden of proof may shift if a party proves evidence that suggests discrimination due to a legally protected feature. A mere presumption that you were rejected because of age or another characteristic does not replace this starting point.

Claims under § 15 paragraphs 1 and 2 AGG must generally be made in writing within two months. In the case of an application, the law is subject to receipt of the rejection; tariff deviations are possible. Section 61b ArbGG provides for a further period of three months from the written assertion of an action for compensation. This time limit for filing an action must not be equated with every claim for compensation.

• Note the receipt of the cancellation.
• Have the applicable deadlines reviewed in a timely manner based on your case.
• An inquiry to our law firm or booking an appointment does not meet any deadline.

Our classification for practice

For advice, two questions should be separated: Is there any viable evidence of discrimination, and what specific damage can be derived from this? This separation prevents a high claim from being developed from a salary settlement alone without sufficiently examining the requirements.

A comprehensibly documented selection decision is important for employers. Secured documents and timely enforcement are crucial for applicants. The press release discussed here allows an initial classification; further statements on individual Senate considerations require full reasons for the decision.