German Labor Court Rejects Nonbinary Applicant’s AGG Claim as Abuse of Rights

Quick Hits

• The ArbG Berlin found that a nonbinary person’s employment application was not genuinely aimed at obtaining the position and therefore dismissed the subsequent compensation claim as an abuse of rights.
• Whether a disadvantage had occurred remained open because the court dismissed the claim on the basis of abuse of rights.
• Protection of nonbinary persons against discrimination remains unaffected.

The Case—Binary Job Posting and Rejection With an Incorrect Salutation

The claimant’s registered gender marker is “diverse,” and they applied for a position as a “Consultant for Procurement Law and Public Procurement.” During the application process, the claimant asked to be addressed in a gender-neutral way. The employer rejected the application by email in February 2026 and addressed the claimant as “Mr.” The claimant based the claim for compensation under the AGG on two alleged indications of discrimination: the purely binary wording of the job posting and the incorrect salutation in the rejection.

The Decision—No Claim Due to an Abusive Application

The court dismissed the claim without ultimately deciding whether a disadvantage had occurred. IThe court dismissed the claim without ultimately deciding whether a disadvantage had occurred. Instead, the ArbG held that the compensation claim was abusive because, in the court’s view, the application was not intended to obtain the position but solely to create a claim for compensation. The Berlin Labor Court cited several circumstances that weighed against a genuine interest in the position:

• the close timing between the rejection and the pursuit of the claim;
• a lack of expertise in procurement law, which was required for the position; and
• simultaneous enrollment at two universities.

On balance, the court found that the indications against a genuine interest in the position outweighed any indications of genuine interest. The claimant may file an appeal with the Regional Labor Court (Landesarbeitsgericht) Berlin-Brandenburg and, according to media reports, has already announced plans to do so.

Takeaways—Take Discrimination Protection Seriously, Limit the Risk of Abuse

Discrimination protection naturally applies in the application process as well. Employers may want to draft job postings in gender-sensitive terms, and the addition “(m/f/d)” or “(m/f/x)” is essential here. They may also want to design their procedures to be free from discrimination and to take care, when addressing applicants, to correctly reflect each applicant’s sex or gender identity.

The court nevertheless drew a clear line where, in its assessment, an application is not aimed at employment but solely at obtaining compensation. According to the court, a systematic assertion of claims aimed only at compensation can constitute an abuse of rights and fail for that reason alone.

The ruling leaves protection for nonbinary persons and other affected applicants intact, while rejecting claims that the court views as abusive.

Ogletree Deakins’ Berlin office will continue to monitor developments and will post updates on the Cross-Border and Germany blogs as additional information becomes available.

Julia Kulmegies is an associate in Ogletree Deakins’ Berlin office

Lela Salman, a law clerk in Ogletree Deakins’ Berlin office, contributed to this article.

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