The third sex: m/f/d - Gender-neutral job advertisements as liability risk

Since the beginning of the year, it is possible for intersexual people to enter "diverse" in the civil register in addition to "male" and "female". For companies, this novelty is particularly relevant for job offers, because according to the General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz - "AGG") in Germany a job must be advertised in a gender-neutral manner. Every job advertisement must therefore contain the addition (m/f/i/t) or ( m/f/d) - as an abbreviation for "male" and "female" as well as for "intersexual/transsexual" or "diverse".

Since an applicant hardly has the opportunity to know the actual reasons for a rejection, the AGG provides for a reversal of the burden of proof to the detriment of the employer. The rejected applicant only has to present circumstantial evidence suggesting discrimination. If this succeeds, the employer has the burden of proof that the refusal does not represent illegal discrimination. Currently, by the introduction of the third sex, job advertisements are offering a particularly large surface of attack. Thus, according to a current analysis of 620,000 advertisements by the job search engine Adzuna, only approx. half of the job advertisements published on the platform are gender-neutrally formulated in today's sense; the rest are limited to the usual "m/f".

In order to avoid claims for damages by rejected applicants, and in practice in particular claims for compensation for immaterial damage of up to three months' salary, companies should review the wording of their job advertisements with regard to the third sex and, if necessary, adjust it. Another remark: the prohibition of discrimination does not only apply to job offers; according to Section 2 No. 8 AGG, discrimination is also inadmissible in access to and supply of goods and services which are available to the public. In registration forms of online shops, for example, a third selection option should be set up next to "Mr" and "Ms" - if one does not want to completely give up a corresponding specification.