Quick Hits
- A claim under Section 12 (3) of the German General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz (AGG)) for measures against a colleague requires that the colleague’s conduct constitutes discrimination based on a characteristic listed in Section 1 AGG.
- Assigning a long-tenured employee to share an office with trainees does not, without more, constitute age discrimination.
- Rudeness is not workplace bullying; conduct rises to that level only when it is systematic and objectively reprehensible.
The Case—Lunch, a Microwave, and a Lost Contact Lens
The plaintiff has worked as an administrative employee at a university of the defendant German state since 1982. She is now close to retirement. She accused a coworker of bullying and based her claim on four incidents:
- The colleague did not help her look for a contact lens. According to the plaintiff, the search took fifteen to thirty minutes.
- The colleague once spoke to her in a harsh tone and then slammed the door.
- The colleague did not acknowledge birthday wishes sent via a text messaging app.
- The shared lunch was moved to another office, along with the microwave.
The plaintiff demanded that the employer—a German state (Land)—terminate the colleague’s employment, or, alternatively, transfer or formally warn the colleague. She also claimed monetary compensation. She alleged age discrimination based on the employer’s suggestion that she move to an office shared with trainees, arguing that the young adults there would have no common conversational topics with her “as an older woman.” The employer offered mediation, which did not take place because the colleague declined.
The Decision—Uncollegial but Not Reprehensible
The Labor Court of Mannheim (Arbeitsgericht Mannheim (ArbG Mannheim)) dismissed the claim in its entirety (Ref. No. 5 Ca 139/25).
A claim under Section 12 (3) AGG failed because none of the characteristics listed in Section 1 AGG were implicated. The court found no indication that the colleague had treated the plaintiff less favorably because of her age or disability.
The court also rejected the claim for compensation under Section 15 (2) AGG. The court stated that it was “not apparent” why sharing an office with trainees should constitute age discrimination against a long-tenured employee. In any event, such a reassignment would be objectively justified because the employer has discretion in deciding how to respond to workplace conflicts.
The court found that workplace bullying (commonly referred to as “mobbing” in Germany) was not established either. Failing to help search for a contact lens or not responding to birthday wishes is, in the court’s view, “uncollegial, socially inattentive, and rude,” but not reprehensible and therefore not a breach of duty. The decisive factor is an objective assessment, not the subjective perception of the person affected. The court held that the employer had already fulfilled its duty of care by suggesting mediation and offering a reassignment.
Key Takeaway—Not Every Conflict Is Discrimination
The ArbG Mannheim’s ruling provides employers with an illustrative reminder that the AGG protects against unfair treatment based on age, but not against every act of rudeness. The decision also offers several insights for employers:
- Responding to conflicts. Employers may want to offer solutions early, such as mediation or separate workspaces. This may be helpful even if the conduct has not yet reached the level of bullying.
- Choosing a move based on objective reasons. Employers do not need to determine who is to blame for the conflict. A move based on objective reasons can usually be defended against claims of age discrimination.
- Documenting the steps taken. In this case, the court was convinced by the offer of mediation, the occupational integration management (betriebliches Eingliederungsmanagement (BEM)) meetings, and the offers to move. Together, these showed that the employer had fulfilled its duty of care.
Ogletree Deakins’ Berlin office will continue to monitor developments and will post updates on the Cross-Border, Employment Law, and Germany blogs as additional information becomes available.
