Employment Law2026-10-27

Discriminated against during recruitment – do I only get three months' salary, or my full lost earnings?

The three-months'-salary cap applies to only one of two AGG claims. I explain when more is possible – and which deadlines are now running.

You applied for a job and received a rejection. The circumstances leave you with only one conclusion: you were filtered out because of your age, your sex, your origin or some other characteristic protected by the General Equal Treatment Act (AGG) – and not because of your qualifications. Now the question of money arises. It is often answered incorrectly online: is it capped at three months’ salary at most? Or, where there is a genuine loss of earnings, can considerably more be recovered?

In short

There is not one AGG claim, but two. Only one of them is subject to the three-months’-salary cap. The compensation for the non-material harm (section 15(2) AGG) is limited to three months’ salary only where you would not have been given the job even without the discrimination. The damages for actual lost earnings (section 15(1) AGG) are not subject to this cap. They continue to run until the connection between the discrimination and the loss is broken – for instance because you have found a new, suitable position and have settled into it. This follows from the general law of damages: in the absence of a statutory cap, the employer remains liable to make good the loss for as long as the causal link between the discrimination and the harm persists.

How I help you

An assessment of whether the indications of discrimination are sufficient and which claim – compensation, damages or both – holds up in your case
Protecting the deadline: asserting the claim in writing within the two-month period, so that it does not lapse
Calculating the lost earnings and determining from what point the chain of attribution ends
Enforcing the claim out of court against the employer and, if necessary, bringing a claim before the labour court

Two claims, two yardsticks

In section 15 AGG the legislature deliberately distinguishes between two types of harm. Confusing the two is an error of reasoning that I often hear in initial consultations.

Section 15(2) AGG gives you a claim to appropriate compensation in money for the non-material harm. This is the indignity that lies in the discrimination itself – regardless of whether you would have been given the job at all. This claim does not require any fault on the employer’s part. The three-months’-salary cap applies here, however, only in one particular situation: where you would not have been appointed even in a selection process free of discrimination – for instance because another applicant was genuinely better qualified. In that case it is assumed that the economic loss is slight. The compensation is then capped.

Section 15(1) AGG, by contrast, concerns the financial loss: the earnings you missed out on where, without the discrimination, you would actually have been given the job. This claim does require the employer to be responsible for the breach of duty. The employer can exonerate itself if it is not at fault. For this claim the Act prescribes no upper limit of three salaries. If you can prove that you would have obtained the position but for the discrimination, you are in principle entitled to your full lost earnings – for as long as the loss continues and is attributable to the employer.

The three months’ salary are therefore not a general ceiling for AGG cases. They limit only one part of the claim – and even then only on a particular condition.

How long do lost earnings run – and when do they end

Section 15(1) AGG contains no upper limit. The liability to make good lost earnings is therefore not limited in time from the outset. There is thus no automatic cap after one year or after a certain number of months’ salary.

The claim does end, however, as soon as the chain of attribution between the discrimination and the loss is broken. That is regularly the case once you have found a new position appropriate to your qualifications and have become established in it. From that point onwards, the case law attributes your further career development to the ordinary risks of life – no longer to the original discrimination. So if you took up another suitable position years earlier, you can as a rule claim no further lost earnings for the subsequent years.

In practical terms this means: the longer you remain unemployed, the more likely it is that the full claim for damages will hold up. That is especially so where it is clearly apparent that the unemployment is due to the failed application. Once you have arrived in a suitable position again and have settled in, that is the moment to quantify and enforce the claim.

The deadlines: two months in writing, then three months to bring a claim

Both claims – compensation and damages – must, under section 15(4) AGG, be asserted in writing against the employer within two months. In the case of a job application, this period begins when the rejection reaches you. If you miss this deadline, the claim will as a rule have lapsed – regardless of how clear the discrimination was.

For a claim for compensation, section 61b(1) ArbGG also applies. You must bring that claim within three months of having asserted it in writing. This special limitation period does not, however, apply to the claim for damages for lost earnings. There the ordinary limitation period applies, which is as a rule three years. That does not relieve you of the need to act promptly: if you assert the compensation in writing too late, or wait too long to bring your claim after asserting it, you will in any event lose that claim. I therefore advise thinking of both deadlines together from the outset – and not exhausting the full two months for asserting the claim before you even turn your mind to the court proceedings.

An example from practice

An applicant receives a rejection after her interview. In the course of the proceedings it emerges that, in internal correspondence, her age had been given as the reason for rejection. Yet she had been rated the best on the merits. Within the two-month period she asserts in writing both a claim for compensation and a claim for damages for the earnings she missed out on. According to the assessment records, she would have been given the job but for the discrimination. The three-months’-salary cap therefore does not automatically apply to the compensation. For the lost earnings there is in principle a claim to the full shortfall amount. It ends at the point when she finds a new, comparable position and becomes established in it.

Common mistakes

Many of those affected wait too long before asserting their claim in writing, because they first want to await an out-of-court resolution or a response from the employer. The two-month period, however, keeps running regardless. A further mistake: equating the compensation under subsection (2) with the lost earnings under subsection (1), and therefore prematurely claiming only three months’ salary – even though the actual loss is considerably higher. Some of those affected also fail to gather evidence of their own qualifications and of the state of their application at the time of the rejection. It is precisely these documents that later decide whether full damages or only the capped compensation are awarded.

Frequently asked questions

Do I have to prove that I was actually discriminated against?

No, not in full. Under section 22 AGG it is enough for you to put forward facts that make discrimination on the ground of a protected characteristic more likely than not – for instance a corresponding wording in the job advertisement or in internal documents. If you succeed in doing so, the employer must prove that there was no breach.

What if I would not have got the job anyway?

In that case what generally remains is only the claim for compensation under section 15(2) AGG. This is limited to three months’ salary, because in this situation the Act assumes a smaller economic loss. A claim for lost earnings under section 15(1) AGG is then ruled out, because there is no causal link between the discrimination and the earnings missed out on.

Does an expired two-month deadline extinguish my claim?

In principle yes, as it is a cut-off deadline. What is decisive, therefore, is exactly when the period begins to run. Equally important: whether it was already preserved by an initial response in writing. I should examine this in each individual case before you assume that the deadline has been missed.

Does the three-months’-salary cap also apply to a promotion rather than a new appointment?

Not according to its wording: section 15(2) sentence 2 AGG expressly limits the compensation to three months’ salary only in the case of a failure to appoint. For a refused promotion the text of the statute does not expressly provide for this cap. Whether it is applied by analogy in such a case is something I clarify on the individual facts.

Your next step

Do you suspect that you were discriminated against during recruitment? Then time is now what matters most. The two-month period for asserting the claim in writing runs from the moment the rejection reaches you. After that, only three further months remain for the compensation claim. I will examine with you whether the indications hold up. I will clarify which of the two claims applies in your case and how high the actual loss is. And I will make sure that all the relevant deadlines are reliably met. More on your options in employment law, or straight away in a personal initial consultation, nationwide by video or telephone.

This article provides general information and is no substitute for legal advice in an individual case. Last updated: 2026-10-27.

Christian Czirnich, Rechtsanwalt (attorney at law), Kirchseeon near Munich

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