Discrimination Through a “Secretary” Job Advertisement

Hesse Regional Labour Court (LAG Hessen), Judgment of 26 January 2026 – Case No. 7 SLa 435/25

In its judgment of 26 January 2026 (Case No. 7 SLa 435/25), the Hesse Regional Labour Court held that the defendant employer was required to pay the claimant compensation pursuant to Section 15 (2) of the General Equal Treatment Act (AGG) for a violation of the prohibition of discrimination under Section 1 AGG. The non-gender-neutral wording of the job advertisement established a presumption of direct discrimination. The defendant’s objection of abusive “AGG-hopping” was unsuccessful, as the defendant had failed to present and prove the facts required to establish such abuse.

A. Facts

On 23 May 2023, the claimant applied via the online platform “Indeed” by email for a position advertised by the defendant under the title “kaufmännische Mitarbeiterin/Bürokauffrau/Sekretärin” (commercial employee [female form]/office administrator [female form]/secretary [female form]). While the body text of the advertisement did not contain any gender-specific differentiation regarding the requirements or the nature of the role, the position was advertised as a full-time role with a gross monthly salary of EUR 3,300.00.

The claimant, who had completed training as an industrial clerk, attached a cover letter, a curriculum vitae and further application documents to his application. By letter dated 26 May 2024, he received a rejection from the defendant. The claimant took the view that he had been rejected on the basis of his gender, which constituted prohibited unequal treatment under Section 1 AGG, and that the job advertisement gave rise to a presumption of discrimination in accordance with Section 11 AGG. He considered compensation of at least two gross monthly salaries, i.e. at least EUR 6,600.00, to be appropriate, reasoning that he was still without employment. He further noted that compensation under Section 15 (2) AGG was, in principle, not capped at three gross monthly salaries. He rejected the defendant’s objection of abuse of rights and argued that the mere fact of having applied for several positions, including those at a considerable distance from his place of residence, did not constitute an abuse of rights, particularly since he maintained a genuine interest in full-time employment with the defendant.

The claimant further submitted that the distance between his place of residence and the potential workplace at the defendant’s premises did not undermine the seriousness of his application, as a change of workplace required a certain degree of geographical mobility, and that the large number of court proceedings for compensation that the claimant was pursuing against various defendants did not speak against the seriousness of his application. As an alternative explanation for his application behaviour, he referred to his obligation to register as unemployed pursuant to Section 141 (1) sentence 3 of the German Social Code Book III (SGB III) and the risk of blocking periods for unemployment benefits in the event of insufficient personal efforts pursuant to Section 159 (1) No. 3 SGB III. He also stated that his distance learning programme did not preclude his application, as it had already been completed.

The Frankfurt am Main Labour Court (cf. judgment of 2 April 2025 – Case No. 14 Ca 4541/24) had initially issued a default judgment dismissing the claim, against which the claimant lodged a timely and properly filed objection. The defendant raised the objection of abuse of rights and asserted that the claimant was a so-called “AGG-hopper” with a systematic business model, as he was conducting multiple court proceedings solely for the purpose of asserting compensation claims against various defendants.

The defendant based this claim on, among other things, an allegedly superficial cover letter, the incompatibility of the position with the claimant’s distance learning programme, a continuous adaptation of his litigation and application behaviour, and the considerable distance between the workplace and the claimant’s place of residence, for which the claimant had not presented any relocation plans.

The Frankfurt am Main Labour Court subsequently ordered the defendant to pay the claimant compensation in the amount of EUR 4,500.00, holding that the presumption under Section 22 AGG was triggered due to the defective, non-gender-neutral job advertisement pursuant to Section 11 AGG, and that this – with reference to the case law of the Federal Labour Court (cf. judgment of 19 September 2024 – Case No. 8 AZR 21/24) – established direct discrimination. The court did not consider either the application documents or the number of compensation proceedings brought by the claimant against various defendants to constitute a sufficient indication of abuse of rights.

B. Reasoning of the Hesse Regional Labour Court

The defendant’s appeal to the Hesse Regional Labour Court was unsuccessful. The Hesse Regional Labour Court upheld the first-instance decision and dismissed the defendant’s appeal as unfounded, holding that the claimant had been disadvantaged on the basis of his gender as a result of the defendant’s job advertisement, which, following the rejection, gave rise to the assumption of direct discrimination pursuant to Section 3 (1) AGG.

The personal scope of application of the AGG was open, as the claimant qualified as an employee within the meaning of Section 6 (1) sentence 2 AGG and the defendant as an employer within the meaning of Section 6 (2) AGG. The compensation claim had also been properly and timely asserted (cf. Section 15 (4) AGG, Section 61b (1) of the Labour Court Act (ArbGG), Section 167 of the Code of Civil Procedure (ZPO)).

I. Existence of Discrimination

The court found that the defendant had advertised the position in question contrary to Section 11 AGG in a non-gender-neutral manner, which indicated unequal treatment, and that the claimant had received less favourable treatment than a comparable person as a result of the rejection of his application, such that the requirements of Section 15 (2) AGG were met.

The defendant’s submission that the advertisement had merely contained a linguistic error without any gender-based preselection was, in the court’s view, insufficient to rebut the reversal of the burden of proof ordered under Section 22 AGG, particularly since the repeated use of the female form typically indicated unequal treatment on the basis of gender. The defendant would have had to demonstrate specific circumstances establishing an objective, standardised selection process focused exclusively on filling the position, which it had failed to do. The assertion that the position had ultimately been filled with a male applicant, or the reference to numerous subsequently gender-neutrally worded job advertisements in the period from August 2023 to October 2024, did not alter this finding, since the recruitment process at issue had already been concluded with the rejection in June 2024 and the defendant had not disclosed any selection criteria.

II. No Abuse of Rights Pursuant to Section 242 of the German Civil Code (BGB)

The court further held that a compensation claim could be subject to the defence of abuse of rights if the applicant had not applied for the position but only for the formal applicant status with the sole aim of asserting a claim, for which both an objective and a subjective element were required.

The burden of presentation and proof for the existence of these requirements lay with the employer, who had to present corresponding indications and, if contested, provide proof. The mere labelling of the claimant as an “AGG-hopper” did not in itself constitute a defence of abuse of rights and was not a suitable indication.

An abuse of rights could not be inferred merely from the fact that a person had sent a large number of unsuccessful applications and had conducted multiple compensation proceedings, as such behaviour could also be explained by a genuine interest in a position and the permissible exercise of rights under the AGG. Accordingly, high requirements had to be applied to the assumption of a defence of abuse of rights.

What was required was a systematic and targeted pattern of behaviour identifiable in the individual case, based on the consideration that, from an economic perspective, a sufficient “profit” would remain. The appeal chamber assumed in the defendant’s favour that the claimant had continuously applied nationwide for positions obviously advertised in a non-gender-neutral manner as “secretary” [female form] or “office administrator” [female form] and, following rejections, had attempted to enforce compensation claims through the courts. However, the court was unable to determine from the defendant’s factual submissions how the specific application processes had proceeded in detail, nor what adjustments the claimant had made to his application documents or his behaviour. The defendant’s reference to court decisions also did not evidence any such adaptation or change in behaviour. Referring to the requirements of the Federal Labour Court (cf. judgment of 19 September 2024 – Case No. 8 AZR 21/24) regarding the clarification of the facts, the court found that, in the absence of corresponding investigations by the defendant, it was unable to make any further findings regarding an established business model of the claimant on the basis of the principle of party presentation.

In the appeal instance, the court’s assessment was no different: abusive behaviour did not follow merely from the fact that a cover letter was standardised or superficially drafted, as there was neither an empirical rule that only a carefully drafted cover letter demonstrated genuine interest, nor the reverse. The fact that the claimant had not answered a question from the opposing counsel at a conciliation hearing and had subsequently applied for a further gender-neutrally advertised position was also insufficient to establish a business model, as the defendant had likewise not conducted the necessary clarification of the facts in this regard.

On the question of the lack of willingness to relocate, the court clarified that this alone could hardly constitute an indication of abuse of rights, particularly as the claimant had referred to his unemployment, his statutory obligation to apply for jobs, and his willingness to take up the position, and was entitled under Article 12 (1) of the Basic Law (GG) and under the social law requirements to apply for positions throughout Germany.

The defendant’s assertion that the application was incompatible with the claimant’s distance learning programme was also unsuccessful, as the claimant had demonstrated that the programme had already been completed and the defendant had not substantively challenged this.

Finally, the appeal chamber conducted an overall assessment of the circumstances cited by the defendant (the number of court proceedings brought by the claimant, further proceedings against the defendant, nationwide applications, distance from place of residence, and absence of relocation plans), but concluded that even the cumulation of these factors did not constitute proof of a business model aimed at generating a sufficient profit, as the defendant had not carried out the necessary clarification of the facts, for example through “data collection” regarding earlier application processes.

With regard to the subjective element of the abuse of rights, the court also found that the claimant’s individual factual submissions regarding his training, his experience of gender discrimination, and his situation of unemployment and receipt of basic social security benefits at least relativised a purely general-preventive motivation. The defence of abuse of rights therefore did not arise due to the defendant’s failure to carry out further clarification of the facts.

C. Practical Note

The decision illustrates that employers who wish to rely on the defence of abusive “AGG-hopping” in response to a compensation claim under the AGG bear the full burden of presentation and proof for both an objective and a subjective element of abuse of rights, with high requirements applying in this regard.

According to the decision, neither a large number of unsuccessful applications and compensation proceedings, nor the considerable distance of the workplace from the place of residence, a standardised or superficial application, or the claimant’s lack of relocation plans are, individually or cumulatively, sufficient to establish a systematic, profit-oriented business model if the employer is unable to adequately discharge its burden of presentation and proof for both an objective and a subjective element of abuse of rights – as was the case here due to insufficient clarification of the facts. Rather, what is required is a concrete clarification of the facts by the defendant employer, for example through “data collection” regarding the respective claimant’s other application processes, as well as proof of strategic adjustments between the individual proceedings brought in order to minimise risks. The decisive factor is that the employer is able to present and prove in substance a business model on the part of the claimant aimed at generating a profit.

Overall, the decision imposes high requirements on the burden of presentation and proof for employers regarding abusive conduct in the form of so-called “AGG-hopping.” In practice, such a degree of detail in the clarification of the facts will be difficult for employers to achieve – particularly with regard to potential parallel application and/or court proceedings of the claimant against other potential employers. It is to be feared that the defence of abuse of rights will be effectively rendered meaningless due to the considerable requirements that the courts impose on the burden of presentation and proof borne by employers.