Rejection Due To Headscarf – Federal Labor Court Holds Employer Liable For Compensation

Rejecting an applicant because she wears a religious headscarf may prove costly for employers: in its decision of 29 January 2026 (8 AZR 49/25), the Federal Labor Court (Bundesarbeitsgericht, “BAG”) held that, in such circumstances, the applicant is entitled to compensation from the prospective employer - even where the rejection was issued not by the employer itself but by a selection company engaged by the employer.

The defendant provides security services at German airports in the area of passenger and baggage screening as a company entrusted by the Federal Police. It had mandated another company within the same group to conduct the selection process for positions as aviation security assistants. The claimant applied for the position and, during the recruitment process, submitted a CV including a photograph showing her wearing a headscarf. Shortly thereafter her application was rejected without further explanation. She then approached the company and claimed compensation pursuant to § 15 (2) of the General Act on Equal Treatment (Allgemeines Gleichbehandlungsgesetz, “AGG”), arguing that she had been disadvantaged in the selection process on grounds of religion. The defendant asserted that the claimant had not been rejected because of the headscarf but due to gaps in her CV. It further relied on a group works agreement applicable within the company, under which the wearing of any kind of head covering is prohibited. In addition, as persons entrusted by the Federal Police, aviation security assistants are said to be subject to a state neutrality requirement. The company argued that this justified prohibiting the wearing of a headscarf while on duty.

In line with the lower instances, the BAG found that the rejection of the applicant breached the AGG and awarded the claimant compensation in the amount of EUR 3,500.00. The claimant had presented sufficient indicia giving rise to the presumption that she had been disadvantaged on grounds of religion. The BAG also rejected the defendant’s view that refraining from wearing a headscarf constituted a material requirement for the role of aviation security assistant sought by the claimant. According to the BAG, refraining from wearing a headscarf does not constitute a decisive occupational requirement within the meaning of § 8 (1) AGG for the activity of an aviation security assistant. In particular, there was nothing to indicate that the wearing of a headscarf at the airport leads to an increased number of conflict situations such that rejecting the application on that basis would have been justified. The BAG found no objective evidence to that effect. It is noteworthy that the BAG held the defendant company liable for compensation even though it had not conducted the recruitment process itself. In doing so, the BAG followed its established case law, pursuant to which a prospective employer must be held responsible for the conduct of a company commissioned to carry out the recruitment and selection process.

The BAG’s decision underscores that, to substantiate a claim for compensation, it is sufficient for applicants to present indicia making discrimination predominantly probable; if the applicant succeeds in doing so, the employer must then rebut the presumption. To this end, the employer must furnish so-called “full proof” (Vollbeweis). In other words, the employer must submit - and, where necessary, prove - facts demonstrating that the less favourable treatment was caused exclusively by reasons other than the discriminatory grounds prohibited under the AGG, such as ethnic origin, gender, religion, disability, age or sexual identity. In the case decided by the BAG, the defendant was unable to do so.

Employers must act with particular care during the recruitment process in order to avoid discrimination - also when engaging external recruiting service providers. Interposing a recruiter does not relieve the employer of responsibility for the hiring decision. The reasons for rejecting an applicant should always be documented clearly and, where necessary, be capable of proof. Accordingly, the primary objective should be to avoid creating any indicia in the first place: once a rejected applicant can establish indicia suggesting unlawful disadvantage, the employer faces a very high evidentiary burden. Vague statements such as “gaps in the CV” will not suffice in the BAG’s view. Employers should critically review internal policies and agreements - particularly where they provide for blanket prohibitions on head coverings.