Permissible Unequal Treatment

Unequal treatment according to the AGG can be permissible, if existent disadvantages are likely to be impeded or compensated for by an action for a group of people. An example of such a situation would be the preference for women in the filling of an employment position. (Positive discrimination §5 AGG)

Additionally, an act of unequal treatment may be permitted if a factual basis exists. Some examples for which are:

  • The differential treatment on the basis of citizenship, such as
    • The restriction of the right to vote
    • Residence and asylum legislation
    • Entry visa requirements
    • Work permits for foreigners

These examples of differential treatment, in comparison to the concept of unequal treatment in German law, are not valid as acts of discrimination as the conception of the legislators is justifiable on a factual basis.

  • Essential occupational requirements
    • Language test for the secretary to the Manager
    • the employment of solely female care staff in a gynaecological practice
    • the agreement upon a maximum age for job applicants, for occupations with a certain level of physical stress (such as pilots, bus drivers and fire fighters)
  • Protection of religious groups
    • A catholic kindergarden can dictate that Catholic religious belief be a requirementfor the employment of nursery-school teachers.
  • Housing
    • Discrimination in housing (for example, rental of only a limited number of flats to persons of Turkish, African or Russian origin) on the grounds that this is necessary to "preserve or produce socially stable resident structures" pursuant to § 19 para. 3 AGG.
    • If the landlord or his or her relatives live on the same property, they are permitted the right of refusal of a tenant on the grounds of nationality, according to the AGG. (§19, clause 5, line 2).


The above mentioned, AGG-permissible acts of unequal treatment may contravene EU law. It is therefore questionable whether acts of discrimination in the area of housing allocation can be proven under these provisos. What that means for you: If you are discriminated against under one of these provisos you are entitled to damages, and to make a claim for compensation according to the AGG. The question of the legitimacy of these provisos must then be legally clarified.