In our article “Update on AGG Hopping”, we previously outlined what employers should keep in mind to ensure a discrimination-free recruitment process and highlighted recent developments in this area. In its judgment of May 7, 2026 (2 Ca 6536/25), the Düsseldorf Labor Court has now taken a firm stance against a “classic AGG hopper,” expressly departing from the established case law of the German Federal Labor Court.
Facts
The plaintiff, a 50-year-old individual with a severe disability, applied for an open position with the defendant. He submitted a document containing personal information and an excerpt from an administrative decision indicating a degree of disability of 90. The defendant rejected the plaintiff’s application on the same day. A few hours later, the plaintiff sent a letter to the defendant alleging violations of various protective and affirmative obligations under Book IX of the German Social Code (SGB IX) and demanded compensation in the amount of EUR 75,000. In the subsequent proceedings, the defendant filed a counterclaim seeking information on the number of AGG compensation proceedings brought by the plaintiff.
Decision
The Düsseldorf Labor Court dismissed the claim. The plaintiff was not entitled to any compensation. His application constituted an abuse of rights. The purpose of his application was not to enter into a new employment relationship, but to obtain compensation claims. The court described the plaintiff as “the classic AGG hopper.”
Abuse of Rights
Compensation demands by unsuccessful applicants may constitute an abuse of rights. This is the case where the individual does not apply for a position in order to obtain employment, but solely to acquire the formal status of an “applicant” and then assert compensation or damages claims. In litigation, the employer bears the burden of demonstrating abuse of rights on the basis of circumstantial evidence. Courts, however, apply a high evidentiary threshold.
The employer in the proceedings before the Düsseldorf Labor Court was able to meet this high threshold. Based on an overall assessment of the circumstances, the court found that the plaintiff had acted abusively, relying on the following indicia:
A large number of compensation proceedings initiated by the plaintiff, most recently a comparable case before the Hamm Labor Court (2 Ca 628/25), which dismissed his claim as abusive and referred to him as an “AGG hopper.”
A legally sophisticated demand letter sent immediately after the rejection, indicating targeted preparation.
Absence of a genuine intention to change employment, coupled with limited availability due to his long-standing employment and other commitments, despite the undisputedly large number of applications submitted.
Use of a doctoral title that the plaintiff was not authorized to use in Germany.
Extensive documentation of the application process through screenshots before submitting the “application,” which the court considered atypical for a serious applicant and useful only for a later AGG lawsuit.
Concealed disclosure of his severe disability by including the relevant documentation within in a 17-page document.
No “Presumed Discrimination” Despite Failure to Submit a Placement Request under Section 164 SGB IX
In the proceedings, the plaintiff also could not rely on a presumption of discrimination under Section 22 AGG based on the defendant’s failure involve the Federal Employment Agency at an early stage and to submit a placement request under Section 164 SGB IX. The Düsseldorf Labor Court held that this was insufficient to establish indicia giving rise to a presumption of discrimination against the plaintiff.
In doing so, the Labor Court expressly departed from the case law of the German Federal Labor Court. Under the Federal Labor Court’s settled case law (e.g., 8 AZR 123/24), even a mere violation of the employer’s review and notification obligations under Section 164 (1), first and second sentences, SGB IX may give rise to a presumption of discrimination on the basis of severe disability.
The Düsseldorf Labor Court considered that approach outdated and legally unconvincing. In the court’s view, the obligation to submit a placement request no longer reflects the realities of modern recruiting processes. While the obligations under SGB IX are intended to ensure that applicants with severe disabilities are considered in the selection process, a purely formal violation of those obligations is not sufficient to presume discrimination on the basis of severe disability. Rather, additional facts related to the specific selection and hiring decision are required. The plaintiff was unable to establish such circumstances.
Consequences and Practical Recommendations for Employers
The Düsseldorf Labor Court’s decision is welcome and, in our view, persuasive.. Employers should not, however, rely on it, as it departs from the settled case law of the German Federal Labor Court.
Employers should therefore consistently comply with, and document compliance with, the review, notification, and participation obligations under SGB IX. Doing so can help avoid a presumption of discrimination from the outset. While an abuse-of-rights defense remains available as a fallback line of defense, the decision shows that it may be worthwhile to take a closer look at suspicious applications. Red flags may include prior compensation proceedings, unusually prompt and comprehensive demand letters, inconsistent statements regarding qualifications, or disclosure of a severe disability only in a concealed manner. Employers should carefully document such circumstances and, in the event of litigation, present them to the court in detail.
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