According to a decision of the Ninth Senate of August 14, 2007 ( 9 AZR 943/06 ), the employer regularly violates the ban on discrimination based on gender if he uses the gender of the employee in selection decisions that result in a better position for individual employees without changing the content of the area of responsibility of the excluded employee is taken into account at his or her expense. This applies e.g. B. in the selection of employed teachers, to whom he grants a better position in pension and financial aid matters in the form of so-called civil servant-like employment contracts without changing their area of responsibility. Discrimination based on gender can be assumed if the legal unequal treatment is linked to gender. It doesn’t matter whether other reasons were also relevant.

If the different treatment is not justified by an objective reason, there is a violation of the ban on discrimination based on gender. According to Section 611a Paragraph 1 Sentence 2 and 3 of the German Civil Code (BGB), which was valid until August 17, 2006, different treatment was permissible if a certain gender was an indispensable prerequisite for the activity to be performed or if the different treatment was based on objective reasons not related to gender justified. Since August 18, 2006, the ban on discrimination based on gender has been regulated in Section 1 3rd Alt., Section 7 Paragraph 1 AGG. By violating Section 611a Paragraph 1 Sentence 1 BGB, the employer always violates the right to equal treatment under employment law. If the employer responds to the departure of two teachers by offering to conclude an employment contract similar to that of a civil servant, the contracts offered are not individual agreements that are excluded from the scope of the principle of equal treatment in order to protect freedom of contract.

With the aim of binding teachers through the conclusion of change contracts, the employer is acting according to a generalizing principle. Der Verstoß gegen den arbeitsrechtlichen Gleichbehandlungsgrundsatz hat zur Folge, dass der benachteiligte Arbeitnehmer Anspruch auf die vorenthaltene Leistung und damit auf den Abschluss eines beamtenähnlichen Arbeitsvertrags hat.