1. Gender discrimination
According to 612 para. 3 Sentence 1 BGB, in an employment relationship, a lower remuneration may not be agreed for the same or equivalent work because of the employee’s gender than for an employee of the opposite gender. According to the prevailing opinion, Section 612 Para. 3 Sentence 1 BGB, the discriminated employee is entitled to the remuneration received by employees of the opposite sex who perform the same work or work of equal value.
The Fourth Senate was concerned with the question of whether a cleaner at a charitable institution can demand the same remuneration as a gatekeeper at this institution. The employment contract guidelines of the Diakonisches Werk der Evangelischen Kirche in Deutschland (AVR DW) applied to the employment relationship. The AVR DW had been changed by adding Annex 18 so that certain remuneration groups, including those into which the cleaner was previously grouped, were abolished. It was grouped into a new professional group catalog W regulated in Appendix 1d. The basic salary in the new compensation groups W is significantly lower than in the previous compensation groups. The gatekeepers were not grouped into professional group catalog W, but remain in remuneration group A IX b.
In its judgment of January 26, 2005 (- 4 AZR 171/03 -) the Fourth Senate decided that the plaintiff is not entitled to remuneration in accordance with remuneration group A VIII of the AVR DW. Such a claim does not follow from Section 612 Paragraph. 3 sentence 1 BGB. The cleaner does not perform equivalent activities
like the porters employed by the charitable institution. Work is of equal value if, according to objective standards of work evaluation, it has the same work value. Whether work is of equal value can only be determined by comparing the work owed as a whole. The extent of the required prior knowledge and skills in terms of type, variety and quality is important for the qualitative value of a job. The requirement profile of the porters, but not that of the cleaning staff, included, among other things, a command of the German language and computer skills. Furthermore, according to the decision of the Fourth Senate, even if equivalent work is assumed, there is no indirect discrimination based on gender, even if one assumes that in the group of cleaning workers falling under occupational group W the number of female employees compared to the group of porters is significantly higher within the scope of the AVR DW. The introduction of the occupational group classification W is justified by objective factors that have nothing to do with discrimination based on gender. The aim is to create a remuneration structure oriented towards the commercial economy in order to avoid outsourcing of economic sectors from the area of social welfare in the future for cost reasons. This danger does not exist with gatekeepers. The introduction of the professional group classification W serves to preserve jobs in the economic sectors within the Diakonisches Werk.
2. Discrimination due to a severe disability
According to Section 81 Para. 2 Sentence 2 No. 3 Sentence 1 SGB IX, a severely disabled applicant who was discriminated against when being hired because of his or her status as a severely disabled person is entitled to compensation amounting to up to three months’ salary if he or she would not have been hired even if personnel were selected without discrimination. Bunun amacı, ayrımcılığın neden olduğu manevi zararın tazmin edilmesidir. Dokuzuncu Senato’nun 15 Şubat 2005 tarihli kararına göre (- 9 AZR 635/03 -), bu durum herhangi bir anayasal kaygıya tabi değildir. This is not a civil penalty that is questionable under the rule of law. Any discrimination due to severe disability represents a violation of general personal rights, which would lead to claims for damages and compensation even according to general principles. The right to compensation is in accordance with Section 81 Para. 2 Sentence 2 No. 4 SGB IX must be asserted in writing within two months of receipt of the rejection. According to the decision of the Ninth Senate, this deadline will be met if the applicant expresses in writing before the deadline that he is demanding compensation for discrimination. It is not necessary to specify the exact height. According to § 81 para. 2 Sentence 2 No. 1 SGB IX, the employer bears the burden of proof that his reasons are not related to the disability
Justify the hiring decision if the applicant credibly demonstrates that he was discriminated against because of his disability. In this regard, the Ninth Senate further decided that the plaintiff applicant can place the burden of proof on the employer by presenting and, if necessary, providing evidence of supporting facts that suggest discrimination due to the status of a severely disabled person. Such a disadvantage can always be assumed if the employer violates Section 81 Para. 1 Sentence 4 and 6 SGB IX, the representatives of severely disabled people are not involved in the application process. The task of the representative body for severely disabled people is to check that positions are filled without discrimination by comparing qualifications. If the employer does not inform the representatives of the severely disabled, they cannot fulfill this task. This creates a presumption that the severely disabled job applicant is being disadvantaged.
According to Section 81 Para. 4 Sentence 1 No. 1 SGB IX, the employer must employ the severely disabled employee in such a way that the employee can utilize and further develop his skills and knowledge as fully as possible. According to a ruling by the Ninth Senate of May 10, 2005 (- 9 AZR 230/04 -), this special employment entitlement also includes jobs that the employer cannot assign to the employee based on his right to give instructions. There is no need for a prior change to the employment contract. The special employment claim arises directly by law and can be asserted without prior change to the contract.
The burden of presentation and proof to enforce the claim is graduated. The claim is conclusively presented if the employee asserts his continued employment by demonstrating his limited performance and shows employment opportunities that correspond to his skills and knowledge. The employer must respond to this in a substantiated manner and present the facts which show that there is no disability-friendly employment suitable for the employee. This includes explaining that there is no corresponding vacant position and that it cannot be made available through transfer. It is then the employee’s responsibility to specify and, if necessary, prove the facts from which it can nevertheless be concluded that there is an existing employment opportunity. If the employer wants to claim that the employee’s employment is unreasonable, he bears the burden of proof for this reason that excludes the claim. The Senate further decided that the employee may list several employment options in the application in a procedurally permissible manner. Such a request is sufficiently specific. The employee leaves
Then, within the scope of the stated employment opportunities, the decision about his future work assignment is made to the employer. This corresponds to the substantive law. In principle, the law for severely disabled persons does not grant any entitlement to a self-determined workplace.
According to Section 81, the employer is 4 Sentence 1 No. 1, 4 and 5 SGB IX is obliged to design the workplace in a way that is suitable for people with disabilities. According to a decision of the Ninth Senate of October 4, 2005 (- 9 AZR 632/04 -), a violation of this obligation does not lead to a delay in acceptance. The employer must pay late acceptance wages if he does not accept the work owed by the employee. No delay in acceptance is justified if the employee is unable to carry out the activities at the assigned workplace (§ 297 BGB). If the employee can only perform part of this, the employee is not in default of acceptance, unless the employee can be assigned another job that he or she can fill (§ 106 GewO). The employer is generally not required to change its work organization or to equip the employee’s workplace with technical work aids. If the employer violates the obligation to design the workplace to accommodate disabilities in accordance with Section 81 Para. 4 Sentence 1 No. 1, 4 and 5 SGB IX, however, he is liable for damages. He then owes the lost remuneration as damages in accordance with Section 280 of the German Civil Code (BGB) in conjunction with Section 81 (1). 4 SGB IX, unless the disability-friendly workplace would be unreasonable for him or it would involve disproportionate expenses (Section 81 Paragraph 4 Sentence 3 SGB IX).