Federal Labor Court decision on discrimination against a pregnant woman when filling a job vacancy
 There is no reason to place strict requirements on the presumption of gender-based discrimination relating to pregnancy (Federal Labor Court decision of 27 January 2011, 8 AZR 483/09).
The plaintiff was one of three managers employed in the defendant's international marketing department. The department was headed by a vice-president, whose position became vacant in September 2005. The plaintiff applied for the job, but was unsuccessful. The defendant filled the vacancy with a man instead of the plaintiff. She was pregnant at the time the position was filled, and this fact was also known to the defendant. The plaintiff sought compensation claiming that she had been discriminated against on the grounds of her sex; i.e. that she had not been given the job because she was pregnant. In support of her claim, she alleged that her pregnancy had been mentioned when she was told of the decision about the job. The employer-defendant alleges that there were objective reasons for its decision.
The Federal Labor Court had already reversed the decision of the Berlin Brandenburg Regional Labor Court against the plaintiff once and referred the decision back to it because the plaintiff had presented facts that would indicate gender-based discrimination pursuant to section 611a (1) of the German Civil Code (old version which was valid until 17 August 2006). After taking evidence, the Regional Labor Court in its second decision again rejected the presumption that there had been gender-based discrimination. When the Federal Labor Court heard the plaintiff's appeal for a second time, it once again reversed the Regional Labor Court's decision and referred the matter back to the Regional Labor Court for another hearing. The Federal Labor Court stated in its reasoning that the Regional Labor Court had made errors of law when ascertaining the facts and in rejecting the presumption. This is because it will be enough to establish a presumption that a pregnant employee has been discriminated against on the gender-based grounds, if she is merely able to show, in addition to objective criteria such as that the job was given to someone else and that the employer knew she was pregnant, that there are other facts giving rise to a presumption of gender-based discrimination. There is no reason to place strict requirements on these additional submissions in particular.
Although the decision concerned the old version of section 611a of the German Civil Code, it is to be expected that it can also be applied to the current legal situation under the General Equal Treatment Act (Allgemeine Gleichbehandlungsgesetz - AGG). This seems likely since it is sufficient for the purposes of establishing gender-based discrimination under sections 7 and 22 of the General Equal Treatment Act if the aggrieved presents what are known as „presumptions of fact" which indicate unlawful discrimination has occurred (Records of the Upper House of the German Federal Parliament (Bundesratsdrucksache) 329/06, p. 51).
In this case, the Court found that it was sufficient that the employer had brought up the plaintiff's pregnancy at the time of issuing its decision. Simply mentioning surrounding circumstances which imply discrimination on the grounds of gender results in a reversal of the burden of proof to the detriment of the employer. Accordingly, any mention – even oral – of pregnancy in connection with a decision about a promotion carries with it a considerable risk that it will be construed as gender-based discrimination. Even where the employer's conduct has been above reproach, there is a risk that the employee will abuse this evidentiary rule.