In Schleswig-Holstein, the position of equal opportunity officer in the public service is reserved exclusively for women. Individuals who do not clearly identify as female cannot be considered for this position. The Federal Labor Court (BAG) does not consider this a violation of the Basic Law—on the contrary: the regulation is constitutional, as it fulfills the special mandate to promote women.
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Equal Opportunities Commissioner: Federal Labor Court confirms restriction to women
In a district in Schleswig-Holstein, a position for equal opportunities officer was specifically advertised for women only. An intersex person with a Master of Laws degree and extensive senior civil service experience at two universities nevertheless applied and was invited to an interview – but was not offered the position.
The applicant subsequently filed a lawsuit for €7,000 in compensation for gender discrimination, alleging discrimination by the job advertisement, which was restricted to women.
The labor court initially awarded her €3,500—half of the amount claimed—and the state labor court also upheld this ruling. It found that the district had not convincingly demonstrated that the rejection was not gender-based. Furthermore, the court found no sufficient objective reason why intersex people should be fundamentally excluded from the position.
The Federal Labor Court (BAG), however, reached a different conclusion in October 2024 (judgment of October 17, 2024 – 8 AZR 214/23) and dismissed the lawsuit in its entirety. While gender discrimination did exist, it was permissible under Section 8 (1) of the General Equal Treatment Act (AGG). The restriction of the position to women was justified by the constitutional mandate to specifically promote women in the public service. Therefore, there was no claim for compensation under Section 15 (2) of the AGG.
Being a woman as a professional requirement: Federal Labor Court confirms restriction to female equal opportunity officers
The Federal Labor Court (BAG) has ruled that the legal requirement in Schleswig-Holstein to fill the position of equal opportunity officer exclusively with women is lawful.
The court clarified that female gender represents an essential and appropriate professional requirement—particularly with regard to advising women in stressful situations such as sexual harassment. Experience has shown that those affected are more likely to open up to a female contact person.
This restriction is permissible not only for men, but also for intersex people. While binary-sex people can also experience discrimination, this does not explicitly affect their role as women. What is decisive is not individual perception, but the legal framework.
The Federal Labor Court also referred to Article 3, Paragraph 2, Sentence 2 of the Basic Law, which states that the state must promote the effective equality of women and men. This constitutional mandate justifies gender-based restrictions – even if they restrict the occupational freedom of individuals.
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We stand for equal career opportunities – regardless of gender, origin, or identity. As experienced employment lawyers, we are committed to combating discrimination in job advertisements and application processes.
Whether it is obvious discrimination or subtle unequal treatment, we examine your prospects of success and represent your interests – competently, committedly, and on an equal footing.
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