According to the transitional provision of Section 33 Para. 1 AGG, the AGG is not intended to retroactively regulate matters that occurred when it came into force on August 18, 2006 had already been completed. New law is only applicable if facts arise after August 17, 2006 that are relevant to the prohibitions of discrimination in the AGG.

The transitional regulation of Section 33 Para. 1 AGG therefore means all unauthorized discrimination that occurred before the AGG came into force, including discrimination due to disabilities. Auf solche Benachteiligungen findet die alte Rechtslage einschließlich des § 81 Abs.The old legal situation, including Section 81 Paragraph, applies to such disadvantages. 2 SGB IX application. The point in time is when the act of discrimination took place. In the case decided by the Ninth Senate on September 16, 2008 ( 9 AZR 791/07 ), the act was the decision not to employ the plaintiff applicant before August 18, 2006. The three-month deadline for filing a lawsuit under Section 61b Para. 1 ArbGG nF does not yet apply to compensation claims based on discrimination due to a disability that were completed by August 17th.

The deadline for bringing an action under Section 61b of the ArbGG (old version) was limited to claims for compensation for gender-related discrimination. If an applicant discloses their severe disability in the application letter, the employer is obliged to take full note of the application letter upon receipt. For old cases, this obligation is based on Section 81 SGB IX old version. If the people acting on behalf of the employer overlook the reference to the severely disabled status and the employer therefore violates its obligations under Section 81 SGB IX old version, discrimination due to a disability is presumed.

The behavior of the people deployed within its sphere of influence is attributed to the employer as an objective breach of duty. It does not matter whether the persons involved are at fault. The public employer must invite the severely disabled person applying for an interview in accordance with Section 82 Sentence 2 SGB IX. This obligation only does not apply if the severely disabled person obviously lacks professional qualifications. Exclusion from the further application process is a disadvantage that is causally related to the disability.