The Regional Labor Court of Rhineland-Palatinate decided that no discrimination on grounds of transsexualism of an applicant could be shown to exist if the transsexualism was not known to the employer (Regional Labor Court of Rhineland-Palatinate, judgment of 9 April 2014, Case: 7 Sa 501/13).

A manager had asked a female job applicant "where the woman was who had been announced to him for the interview". Later he apologized for his behavior. He had not known that the lady who made a quite masculine impression on him was transsexual. The position was given to someone else.

The applicant demanded compensation under the German General Equal Treatment Act (Allgemeinen Gleichbehandlungsgesetz (AGG)). She did not reveal her transsexualism until the appeal proceedings. She argues that the manager disparaged her and doubted her sexual identity.

Claim for Compensation

Thereupon, her counsel asserted a claim for compensation because both the company and the temporary employment agency had violated the General Equal Treatment Act by not recruiting the claimant – being transsexual – and choosing another applicant instead.

No Violation of the General Equal Treatment Act

The judges at the Regional Labor Court of Rhineland-Palatinate dismissed the claim for formal reasons as well as on substantive grounds. The claimant filed an appeal to the Federal Labor Court, which is still pending.

The Regional Labor Court ruled out that a violation of the General Equal Treatment Act could be shown to exist only if the defendant had positively known of the transsexualism and made a decision on such basis. The claimant's transsexualism, however, was not revealed until in the grounds for appeal.

The behavior of the logistics manager did not provide sufficient indications either for affirming his knowledge of the claimant's transsexualism. Although he had repeatedly asked whether it had not been a woman who had been announced for the interview and he had also searched for such a woman in the office, this behavior did not suffice to prove that he had known of the claimant's transsexualism.

Assertion Not in Due Time

Moreover, a claim for compensation under the General Equal Treatment Act is only possible within a period of two months. In the case to be adjudicated by the Regional Labor Court, however, this deadline was not met because the claimant's letter of assertion was received one day too late.

Attribution

Irrespective of the requirement to meet the deadline, the logistics manager's behavior could not be attributed to the temporary employment agency either because the former worked only with the jewelry distribution company.

No Infringement of Basic Rights

The court decided that a claim on grounds of infringement of the general personality right was also ruled out. The prerequisite for such a claim is that the employer has severely infringed the general personality right or that the employer can be accused of serious fault; in the present case, however, only minor encroachments were shown to exist that did not trigger claims for compensation.

Practical Advice

Attention must be paid to not discriminating against applicants owing to their gender or sexual identity. Although the decision provides the employer with the option of referring to "lack of knowledge", caution is still required when it comes to recruitment. Furthermore, the decision relates to the fact that the claimant solely and exclusively referred to discrimination on grounds of sex. Whether the decision would have been the same for a claim concerning violation of sexual identity submitted on time thus remains to be seen.