§ 164 SGB IX: Unknown obligation with dire consequences
I bet that not even 1% of all small and medium sized companies know of this employer obligation whose violation may cause fines and damages. The obligation in question is regulated in § 164 SGB IX, according to whose para. 1 sentence 2 each employer shall notify the employment agency early on of any job vacancy and ask the agency to seek severely disabled applicants.
Fines for lack of participation
Since no employer knows of this obligation, but has to inform himself of any public duties, each employer acts negligently according to § 238 I Nr. 7 SGB IX if he does not engage the representative body for disabled employees or workers’ council. According to para. 2 a fine of up to 10,000 EUR may be levied.
Damages and compensation
This is not the only consequence: If you deny an application of a disabled person, he may claim damages and compensation of up to 3 monthly salaries according to § 15 AGG.
Burden of proof
The discrimination due to disability is assumed according to § 22 AGG if - which will usually be the case - the employer violated § 164 I 2 SGB IX. This even applies if one cannot rule out that the applicant had the required skills, even with bad grades, if this was not an objective requirement in the job advertisement. However, the employer may provide evidence that he had already filled the job before receiving the application of the disabled person. Hence the employer could not discriminate against him in the first place. Therefore it is vital to document the time of deciding on the job filling and the respective reasons.
Beware of shortening the application deadline
The Federal Labour Court (Bundesarbeitsgericht, BAG) ruled that the premature cut-off of the application process can discriminate against disabled even if the employer at that time did not know of any application by a disabled person. For, by cutting the application process short, the employer prevents disabled people from entering applications that could be considered in his decision. Therefore, the employer should not provide a fixed deadline - if he does, he should keep such a deadline.
Applicable to all employers
The obligations according to § 164 SGB IX apply to any job opening of any employer, regardless of company size, i.e. from employee number one on. The worst case is publishing the job offer at the employment agency, without properly asking it to seek for disabled applicants. In that case you risk numerous applications, whose discrimination is assumed.
Conclusion
The case of § 164 SGB IX shows that the lawmakers create (an increasing number of) obligations without properly notifying companies about them. Therefore, trust a law firm such as Streiff Law, to keep track for you not only in employment law, but also other relevant areas of business law. If we check or draft your employment contracts, we keep you, your templates and contracts up to date regarding any new developments in jurisdiction and legislation.
Published on 01.09.2025