Update on AGG Hopping

 The list of court rulings on AGG hopping is extensive. Over the years, specific criteria have been established in case law in this regard.

According to the German Federal Labor Court (judgment of September 19, 2024 – Case No.: 8 AZR 21/24), an abuse of rights (Section 242 German Civil Code (BGB)) exists if, upon consideration of all circumstances of the individual case, it becomes apparent that the applicant did not apply in order to obtain the advertised position, but solely sought to gain the formal status of an applicant in order to assert compensation claims under the AGG. The employer is required to demonstrate and prove the applicant’s abusive conduct. 

The threshold for establishing an applicant’s abuse of rights is very high. This can be seen from a recent judgment of the Hesse Regional Labor Court dated January 26, 2026 (Case No.: 7 SLa 435/25). In this case, a male applicant had applied for a job posting for the position of “secretary,” which was phrased in the feminine form. After receiving a rejection, the applicant alleged discrimination on the grounds of gender and sought compensation. Although numerous indicators suggested abusive AGG hopping – including the superficial nature of the application, the distance between the plaintiff’s place of residence and the workplace (approx. 170 km), and the plaintiff’s previous compensation proceedings – the company being sued was unable to prove abuse of rights to the court’s satisfaction. 

In the Regional Labor Court’s view, special circumstances must exist in the individual case which, exceptionally, justify the conclusion that there was an abuse of rights. If the plaintiff has submitted numerous other applications and has subsequently filed compensation claims, this may be assumed only if systematic and targeted conduct can be established that is based on the intention of generating sufficient financial gain. The plaintiff’s other compensation claims could also be explained by the assumption that he had a genuine interest in each of the advertised positions but had been discriminated against. Nor was the Regional Labor Court convinced by the fact that the wording of the job advertisement contained a formulation error, whereas previous job advertisements had been drafted in gender-neutral terms and, ultimately, a male applicant had even been hired. As a result, the company was ordered to pay compensation to the plaintiff.

Compliance in the recruitment process is essential. The statutory requirements must be observed carefully. Job advertisements must always be drafted in compliance with the AGG. The protected characteristics set out in Section 1 of the AGG must not appear in the job advertisement, neither positively nor negatively.

In the recruitment process, there are numerous special requirements, particularly with regard to severely disabled persons. Among other things, before advertising a position, employers must assess whether the role can be performed by a severely disabled person. If this is the case, a placement request must be submitted to the Federal Employment Agency. Otherwise, this indicates discrimination. Public-sector employers are also required – except where the applicant is manifestly unsuitable – to invite severely disabled applicants to an interview. In multi-stage selection procedures, an invitation to each round is generally required. In addition, when rejecting applications from persons with severe disabilities, employers must assess whether there is a statutory obligation to provide reasons for the rejection.

Recruitment processes should be carefully structured and documented (in compliance with data protection requirements) so that the necessary evidence can be produced in the event of a compensation claim.

A violation of the AGG or anti-discrimination regulations constitutes an indication of discrimination, which employers can only refute with great difficulty due to the reversal of the burden of proof under Section 22 of the AGG. Even minor inaccuracies or errors in wording may be sufficient to indicate discrimination. In essence, an employer must then demonstrate that the recruitment process was free from discrimination and based on objective criteria. The specific circumstances of the individual case are decisive.

To rebut an indication of discrimination and exclude the compensation claim, employers often seek to prove that the applicant acted in abuse of law. This requires proof that the applicant has established a business model based on asserting compensation claims. Relevant indicators include a lack of genuine interest in the application, systematic and targeted conduct aimed at obtaining compensation, conspicuous patterns across different applications by the same applicant, strategic adjustments to minimize risk, or a deliberately provoked rejection. However, the requirements for establishing such conduct are also very high. Under certain circumstances, the employer may be entitled to request information from the applicant regarding prior AGG compensation claims. The legal position in this respect, however, has not yet been settled.

On May 6, 2026, the Federal Cabinet adopted a draft bill providing for amendments to the General Act on Equal Treatment (AGG). The bill implements EU requirements aimed at strengthening protection against discrimination. For example, the draft bill provides that the deadline for asserting claims under the AGG will be extended from two to four months (Section 15(4) of the AGG draft). In addition, pursuant to Section 61b(1) of the Labor Court Act (ArbGG), the deadline for filing a lawsuit is to be suspended in the event of a conciliation procedure that may in future take place prior to litigation until the conclusion of that conciliation procedure (Section 27a(4) sentence 3 AGG draft). This is likely to play into the hands of AGG hoppers, as it could allow proceedings relating to AGG compensation claims to be deliberately delayed. Overall, the Federal Cabinet’s draft bill fails to resolve the problem of AGG hopping. Further amendments, however, remain possible. Germany’s lower house of parliament (“Bundestag”) will now decide on the draft bill.

AGG hopping will remain a relevant topic in employment law practice. In cases of doubt, employers should seek legal advice at an early stage.

In the case of so-called GDPR hopping, i.e., the systematic assertion of claims for access and damages under the General Data Protection Regulation (GDPR) for profit-making purposes without any genuine interest in data protection, the European Court of Justice took an important step toward limiting abusive conduct on March 19, 2026 (Case No.: C-526/24). According to the Court’s ruling, even a first-time request for access pursuant to Article 15 GDPR may be classified as “excessive” within the meaning of Article 12(5) GDPR if the respondent substantiates an abusive intent. A request is considered abusive if it is clearly not aimed at monitoring the processing of personal data, but rather at creating the basis for damages claims. Publicly available information concerning various comparable access requests and subsequent damages claims may be taken into consideration in this regard.