• The ArbG Berlin found that a nonbinary person’s employment application was not genuinely aimed at obtaining the position and therefore dismissed the subsequent compensation claim as an abuse of rights.
• Whether a disadvantage had occurred remained open because the court dismissed the claim on the basis of abuse of rights.
• Protection of nonbinary persons against discrimination remains unaffected.

The Case—Binary Job Posting and Rejection With an Incorrect Salutation

The claimant’s registered gender marker is “diverse,” and they applied for a position as a “Consultant for Procurement Law and Public Procurement.” During the application process, the claimant asked to be addressed in a gender-neutral way. The employer rejected the application by email in February 2026 and addressed the claimant as “Mr.” The claimant based the claim for compensation under the AGG on two alleged indications of discrimination: the purely binary wording of the job posting and the incorrect salutation in the rejection.

The Decision—No Claim Due to an Abusive Application

The court dismissed the claim without ultimately deciding whether a disadvantage had occurred. IThe court dismissed the claim without ultimately deciding whether a disadvantage had occurred. Instead, the ArbG held that the compensation claim was abusive because, in the court’s view, the application was not intended to obtain the position but solely to create a claim for compensation. The Berlin Labor Court cited several...

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