Severe disability
According to the wording of Section 81 Paragraph, which came into force on July 1, 2001. 2 Sentence 1 SGB IX, only severely disabled people or people with equal status are protected from discrimination due to their disability when establishing an employment relationship. Only through Art. 1 § 1 in conjunction with § 7 para. 1 the law implementing European directives for the implementation of the principle of equal treatment of August 14, 2006 (AGG), which came into force on August 18, 2006, created a further ban on discrimination due to a disability.
In contrast to the continued validity of the prohibition in Section 81 (1) according to Article 3 of the law. 2 Sentence 1 SGB IX, this applies not only to severely disabled people and those with equal status, but to all other disabled employees. In its judgment of April 3, 43, 2007 (- 9 AZR 823/06 -), the Ninth Senate decided that a public employer can interpret Section 81 Paragraph in accordance with Community law. 2 Sentence 1 SGB IX, before the AGG came into force, it was forbidden to discriminate against an applicant for a position in the public service because of her disability (GdB 40). By adopting this provision, the German legislature had inadequately complied with Council Directive 2000/78/EC of November 27, 2000 establishing a general framework for the achievement of equal treatment in employment and occupation.
The directive required a general framework to combat discrimination based on disability in employment and occupation to be put in place by December 2, 2003. According to the case law of the European Court of Justice, the term “disability” in the sense of: According to the directive, any restriction that can be attributed to physical, mental or psychological impairments and that constitutes a long-term obstacle to participation in working life. Only with the entry into force of Section 1 and Section 7 Para. 1 AGG, the Federal Republic of Germany has fulfilled its obligation to implement this directive. However, the obligation to apply the law in accordance with Community law requires that the prohibition of discrimination in Section 81 Para. 2 Sentence 1 SGB IX applies without restriction to all employees with a disability for the period after the implementation period has expired until the AGG comes into force. They can therefore also have a claim for compensation in accordance with. § 81 Abs. 2 Sentence 2 No. 2 SGB IX old version.