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AGG: These questions are inadmissible for HR managers

Interview questions are the part of an application that often makes applicants nervous. Many worry that they will not be able to answer the questions adequately. It is rarely asked whether a question should be asked like this at all. The General Equal Treatment Act (AGG) namely sets the legal standards for what is allowed and what is not. The company does not concern itself with everything that HR managers want to know about a candidate. As an applicant, you need to know which questions are inadmissible for HR managers and how you should react to them in case of doubt. We show you, what a HR manager is not allowed to ask and how you can behave, nonetheless inadmissible questions should be asked according to the AGG ...

➠ Content: This is what awaits you

➠ Content: This is what awaits you

AGG definition: equal treatment for all

In Germany should everyone is treated equally become. This principle is already anchored in Article 3 of the Basic Law, where it says: All people are equal before the law. This point will be supplemented by a list. Nobody is allowed to are disadvantaged or preferred because of their gender, their descent, their race, their language, their homeland and origin, their beliefs, their religious or political views.

The principle of equal treatment came into force on August 18, 2006 General Equal Treatment Act (AGG) - also called the Anti-Discrimination Act - picked up. The law gives protected persons and groups the chance to legally defend themselves against discrimination. Anyone who is discriminated against can, for example, be entitled to compensation.

The federal law has a clear goal, which is already made clear in § 1 of the AGG.

The aim of the law is to prevent or eliminate discrimination based on racial or ethnic origin, gender, religion or belief, disability, age or sexual identity.

A particularly large area of ​​application of the AGG is that Employment Law. It therefore applies to:

  • Workers
  • trainee
  • Employee-like persons such as home workers
  • Applicants
  • Former Employees
  • Temporary workers

If there is a works council in the company, it is responsible for compliance with the AGG. It grants the employee special protection against the employer, but it is also intended to prevent discrimination among colleagues.

Examples of disadvantage according to AGG

Is unequal treatment not the same as discrimination, this is already clear from the different hierarchies in companies. Not everyone can be a managing director, so it is right and fair that a managing director's salary is not paid.

The AGG takes a very careful look at what type of disadvantage is present and differentiates four formscarried out by the Federal Anti-Discrimination Agency (PDF):

  • Immediate disadvantage

    Anyone who is treated less favorably than someone else in a comparable situation for one of the reasons mentioned in Section 1 experiences direct disadvantage.

    Example:

    A young applicant is rejected because she is a woman.

  • Indirect disadvantage

    This is the name of a treatment that, at first glance, follows the laws and regulations, but ultimately only affects a certain group of people. Exception: The treatment can be justified legally and factually.

    Example:

    Regulations are only issued for part-time employees. This is an indirect disadvantage for women, since a relatively large number of women work part-time.

  • harassment

    Harassment is the term used to describe undesirable behavior that the person concerned experiences due to gender, age, origin, religion, sexuality or disability. These can be insults, attempts to intimidate or even physical assault.

    Example:

    An employee of Turkish origin is known as a Kanake and garlic bulbs are placed on his workplace.

  • Sexual harassment

    Sexual harassment can take place on a physical, verbal and non-verbal level: it includes indecentions, whistles, sexist remarks or depictions of pornographic content against the will of the person concerned.

    Example:

    An employee grabs a colleague's breasts.

Inadmissible questions for HR professionals according to the AGG

The Anti-Discrimination Act does not only have an impact in the employment relationship. The AGG stipulates that the entire application process non-discriminatory has to be. This already applies to the wording in the job advertisement regarding the selection of the applications received and ultimately the design of the interview.

In practice, for example, no job advertisements may be placed that targeted at one gender are aligned. Employees are not only allowed to search for one Management assistant look, because men would be disadvantaged from the outset.

For some time, this has led to abbreviations such as (m / f / d) in job advertisements. The letter d (for diverse) ensures that there are also people feel addressedwho define themselves as neither male nor female.

What is allowed and what is not allowed in the interview? Basically, a recruiter may only post you Asking information related to the job or in which he has a legitimate interest. The aim is to protect the applicant's personal rights. While this can serve as a rule of thumb, it is not always clear.

The following list shows questions that are inadmissible under the AGG:

  • Questions about your family situation.

    Employers usually look for long-term, reliable employees. Some HR managers therefore ask very carefully about the family situation. Are you pregnant?, Are you planning to have a child?, Are you planning to get married in the near future? However, all these points are among the inadmissible questions under the AGG. It is simply none of a potential employer’s business what your family planning looks like.

    Questions about your relatives, family members or even friends are also inadmissible, as they are in no way related to the position for which you are applying. A HR manager is therefore not allowed to ask about your partner's professional situation or information about your parents.

  • Questions about your private life

    The protection of your personal rights means that a recruiter may not ask you questions that affect your private life. This includes, for example, your sexual orientation, but also your previous convictions, your handling of money or whether you are in debt.

  • Questions about your opinions, views and religion

    Which views you represent, which political party you support or even whom you want to vote for in the next election - all these questions are inadmissible under the AGG. It is also inadmissible to ask applicants about possible union membership. Which religion you belong to is usually completely irrelevant for a job.

  • Questions about your health

    Many HR managers are interested in an applicant's state of health, after all, they should be as operational as possible when they are hired. A new employee who is sick more often than present does not really help the company. However, according to the AGG, questions about your health are not permitted.

    HR managers are therefore not allowed to ask about your current illnesses or your medical history over the last few months or years. Whether certain illnesses occur in your family is also a private matter. The same applies to a disability or severe disability.

When does the Anti-Discrimination Act not apply?

However, all of these areas, which may be of particular interest to some HR managers, have exceptions to the rule. For example, questions about pregnancy or illness may be asked if, in the worst-case scenario, they are exercising the profession from the outset handicapped or even impossible would. For example, a pregnant employee is not allowed to work in the chemistry laboratory, and pregnancy would also endanger her use as a model or dancer.

It can be a in some cases legitimate interest give - for example, if a bank employee is to be hired, the question of his financial situation or previous convictions for theft may be allowed.

There are other exceptions sectarian employersfor whom membership of a religious community is a recruitment criterion - if this of importance for the later activity is.

However, this exception is no longer interpreted as broadly as in the past: With its judgment of September 11, 2018, the European Court of Justice (ECJ) strengthened the rights church worker. The specific case concerned a Catholic chief physician in a Catholic hospital who, after divorcing his first marriage, entered into a second marriage - invalid from a Catholic perspective.

He was then given notice of termination, while his Protestant and non-denominational colleagues no consequences their remarriage had to bear. Here there was discrimination according to the AGG, since his professional activity is "in no way related to an order to proclaim" and is therefore not hindered by the remarriage.

Again and again, applicants come across formulations in job advertisements in which applications from women or severely disabled people are expressly desired. It there is no discrimination, since according to § 5 AGG the aim is to promote underrepresented groups in a certain area - mostly it is about jobs in the public service.

What to do in the event of a violation of the AGG?

If a recruiter asks an inadmissible question, most candidates are first taken by surprise and perplexed. What to do? How react? Once the question has been asked, it is up to you to come up with an answer. You have several options for dealing with the unpleasant situation:

  • Tell the falsehood

    The first important point: If a question exceeds the principles of the AGG, you are not obliged to tell the truth. So if a HR manager wants to know whether you intend to have a child in the next two years, you can confidently lie and No say, even if the desire to have children has been around for a long time.

    More here:

  • Put your counterpart in their place

    For example, you can use the recruiter very direct - but of course please in a calm tone - say that the question has nothing to do with your work. You have every right to do so, but it is unlikely to go down as well with HR professionals.

    More here:

  • Answer the question

    Of course you can also choose to to play the game and answer the question as normal - it is up to you whether you want to tell the truth. This has the advantage that the conversation will probably continue as before, as you have not stepped on your interlocutor.

    More here:

In any case, you should go inside again and ask yourself: Do I really want to work for an employer who already appears to be discriminatory and disadvantageous in the interview? The chances are good that this will continue in the later employment relationship - so maybe it's good that you noticed it in good time.

Your rights as an employee

As stated, the AGG not only protects the rights of applicants in job interviews, but is also intended to prevent discrimination and disadvantage in general. Some job advertisements may unconsciously be poorly worded.

At the latest in day-to-day work, it is important to be aware of certain behaviors, which is why the employer is obliged to comply with the statutory provisions (including the period of action) known in operation close. This can be done on the notice board, through display at a central point or via communication channels accessible to all employees.

Anyone who sees themselves discriminated on the basis of the characteristics outlined above has the following options:

  • You are filing a complaint.

    Possible contact points are the line manager, the equal opportunities officer or the works council.

  • You refuse to do your job.

    Unless your employer provides immediate remedial action, for example in the event of bullying or sexual harassment, you have the right to refuse to work.

  • They are demanding compensation.

    If you were wrongly refused the position in the case of an application or a promotion, you must apply in writing for compensation or damages within two months of becoming aware of this. This does not apply to bogus applications.

As the person concerned, you have the burden of proof, which means you have to Provide evidence - called full evidence in legal German - that you have actually been disadvantaged compared to another person. A purely emotional claim will not be accepted.

Reasons for the Anti-Discrimination Act

It took a while for the AGG to come into force - not least, waves of lawsuits from unsuccessful applicants were feared. Before the AGG was introduced, it was clear that discrimination is never allowed. What is new is that four EU directives are implemented with the law, which are specifically aimed at protecting against Relate disadvantage at work:

  • Anti-Racism Directive (2000/43 / EC)

    This is intended to prevent discrimination based on racial or ethnic origin.

  • Framework Directive Employment (2000/78 / EC)

    It is intended to create a general framework and enable the fight against discrimination at work.

  • Gender Directive (2002 / 73EG; new: 2006/54 / EG)

    Its aim is to achieve equal opportunities and equal treatment for men and women in matters of employment and occupation.

  • Gender Equality Directive (2004/113 / EC)

    This is primarily concerned with gender equality outside of the world of work.

The AGG thus intervenes in the private sector. It also regulates the rights and obligations of Employers and employees. In the event of a violation, it gives disadvantaged people the opportunity to clearly refer to the requirements laid down in the law.

A classic example: Women are not allowed to earn less than men in a comparable position for no reason. The AGG also applies to general wage increases, from which individual people cannot simply be excluded. And of course there is also one Protection against dismissal because of discrimination.

Why do HR professionals ask inadmissible questions?

These regulations and prohibitions based on the General Equal Treatment Act are of course not alien to personnel either. They usually know exactly what is allowed and what is allowed when the limits are exceeded. Nevertheless, applicants are repeatedly confronted with inadmissible questions.

Behind this is the wish as much as possible to find out about a potential employee before hiring and signing the employment contract. Motto: The more I know, the greater the likelihood that I will choose a suitable candidate.

Many candidates do not even know exactly what a recruiter can ask, and then the nervousness of the interview becomes easy abandoned everything by itself.

An opportunity for HR managers to learn a lot, but always with the riskthat an applicant invokes the General Equal Treatment Act and claims his or her right.

Ultimately, dealing with the AGG and the resulting questions is, to a certain extent, a question of personality. So that you know what type of HR manager you have in front of you, we have provided you with a checklist here as a free download (PDF) available. This enables you to prepare for any situation and to respond with the necessary calm:

[Photo Credit: ShotPrime Studio by Shutterstock.com]

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