Inadmissible indirect discrimination on the basis of sex only exists if the measure in question is not justified by objective factors that have nothing to do with the discrimination on the basis of sex. In addition, the reason given by the employer for the unequal treatment must correspond to a real need of the company and be suitable and necessary for achieving this goal.

These conditions meet regulations that are linked to actual work performance. The suspension of the employment relationship objectively justifies a reduction in entitlement. In its judgment of May 21, 2008 ( 5 AZR 187/07 ), the Fifth Senate decided that the collective agreement regulation of a special benefit, which represents additional remuneration and is intended to reward the increase in experience, may not take periods of parental leave into account .

When the AGG came into force on August 18, 2006, Section 611a of the German Civil Code (BGB) was repealed. However, § 611a BGB aF is in accordance with. § 33 Abs. 1 AGG continues to apply to discrimination that occurred before the AGG came into force. A discrimination due to gender in the sense of. Art. 3 Abs. 3 GG already exists when legal unequal treatment is based on gender. It doesn’t matter whether other reasons were also relevant. If compliance with the constitutional prohibition of discrimination is also to be made binding for the employer, and this is the meaning of Section 611a BGB old version, then the employer must be prevented from taking the gender of an applicant into account when making a decision to the detriment of the employer.

However, this is already the case if the bundle of motives that influenced his decision includes the gender of the rejected applicant as a negative criterion or the other gender as a positive criterion. The burden of proof regulation in Section 611a Para. 1 Sentence 3 BGB old version refers to the reason for discrimination, i.e. to the fact of discrimination for gender-related reasons. The provision must be understood in such a way that the complaining employee can place the burden of proof on the employer to the contrary by presenting and, if necessary, proving auxiliary facts that suggest discrimination due to his or her gender.

In its judgment of April 24, 2008 ( 8 AZR 257/07 ), the Eighth Senate decided that, viewed alone, it does not constitute a fact that gives rise to the assumption that a female employee is being discriminated against because of her gender if the employer offers a promotion position to a male employee employee and not occupied by a pregnant employee who held a comparable position in the company. In order to make such a presumption, the employee must present and, if necessary, prove additional facts, so-called auxiliary facts, but the standard for the presumptive effect of these should not be too strict. It is sufficient if, based on general life experience, there is an overwhelming probability of discrimination.