§ 81 para. 2 Sentence 1 SGB IX aF prohibits the employer from discriminating against a severely disabled employee because of his disability. Included in accordance with Section 81 Para. 2 Sentence 2 No. 1 SGB IX aF in particular the disadvantage when establishing the employment relationship. The Ninth Senate had already decided in its judgment of April 3, 2007 that Section 81 Para. 2 Sentence 1 SGB IX aF is also applicable to applicants with a disability level of at least 30 in accordance with community law. The Ninth Senate confirmed this again in its decision of November 18, 2008 ( 9 AZR 643/07 ).
Accordingly, the ease of proof in Section 81 Para. 2 Sentence 2 No. 1 Sentence 3 SGB IX aF applicable. The inadmissible distinguishing feature “disability” must be (part of) the cause of the employer’s disadvantageous decision. This only comes into consideration if the employer knows or should know about the job applicant’s severe disability at the time of the disadvantageous measure. This knowledge is usually confirmed by submitting an equal opportunity assurance in the sense of. § 34 SGB If the employee only discloses his disability after the application deadline set in the advertisement has expired, the employer no longer needs to take this into account if he has already made his selection decision at this point.
In order to refute the presumption of discrimination, the employer can also present objective facts that are not the subject of the information in accordance with Section 81 (1). 1 sentence 9 SGB IX were. The regulation obliges the employer, if a severely disabled person applies, to immediately inform everyone involved of his negative decision and explain the reasons. The information can also be given orally. § 15 para. 2 Sentence 1 AGG gives the employee a right to appropriate monetary compensation for damage that is not financial loss.
The prerequisite for a claim for compensation is a violation of the prohibition of discrimination in accordance with. § 7 para. 1 iVm. § 1 AGG. According to § 7 para. 1 2nd half. AGG, according to a decision of the Eighth Senate of December 17, 2009 ( 8 AZR 670/08 ), discrimination against an employee is prohibited even if the person discriminating against only accepts a characteristic of discrimination. The questions asked in a job interview about specific health impairments can indicate the question of whether a disability exists. The Eighth Senate did not follow the State Labor Court’s argument that the potential employer’s questions and statements were only aimed at the existence of an illness and not a disability.