Job Advertisement Without "m/f/d": Higher Labour Court of Hesse on Compensation Under the AGG and the Objection of "AGG Hopping"

A recent judgment of the Higher Labour Court (Landesarbeitsgericht, LAG) of Hesse (judgment of 26 January 2026 – case no. 7 SLa 435/25) drastically increases liability risks in recruiting. A company advertised a position exclusively as "kaufmännische Mitarbeiterin/Bürokauffrau/Sekretärin" (female forms of commercial clerk / office administrator / secretary) – without a gender-neutral addition such as "m/w/d" (m/f/d). A male applicant received a rejection and sued for compensation for gender-based discrimination. The employer defended itself with the argument of abuse of rights: the claimant was a so-called "AGG hopper" with a standardised application who lived 170 km away and merely wanted to generate litigation proceeds systematically.

The LAG Hesse found for the claimant and confirmed compensation of EUR 4,500 (approximately 1.5 gross monthly salaries). The exclusive use of female job titles violates § 11 in conjunction with § 7(1) of the German General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz, AGG) and establishes a statutory presumption of discrimination under § 22 AGG. This reverses the burden of proof. The employer must then prove without gaps that no discrimination occurred – which is hardly possible without a documented, objective selection concept. The court rejected the objection of abuse of rights (§ 242 of the German Civil Code, BGB): neither a high number of lawsuits nor standardised cover letters nor a long journey suffice as evidence of an impermissible "business model", since the right to free choice of workplace (Art. 12(1) of the German Basic Law, GG) also protects applications from outside the region.

Never rely in recruiting on the objection of "AGG hopping", since the case law imposes an almost insurmountable burden of presentation and proof on the employer in this respect. Job advertisements must without exception be worded in a gender-neutral manner and carry a corresponding addition such as "(m/w/d)" in the main heading. Set up a standardised, purely competence-based selection concept. Every rejection must be based on objective, documented criteria in order to be able to rebut the presumption successfully if it comes to a dispute.