Gender refusal: Are employees threatened with dismissal?

To gender or not to gender? This question not only concerns private individuals, but also many employers. And now also German courts, as a sociologist from Bonn was dismissed without notice - because he didn't want to use gender.

Everyone is now talking about gender equality. Universities, authorities and more and more companies are obliging their employees to use gender-appropriate language. This is leading to legal disputes, as a case from Bonn now shows.

Gender refusal led to dismissal

Dr. Klaus Roggenthin had been managing director of the Federal Working Group for Prisoners (Bag-S for short) for eleven years. But on February 24, his employment ended. The reason: Roggenthin refused to use gender-appropriate language. "I want to decide for myself what language I use," said Roggenthin in an interview. His employer's reaction was prompt - in the form of termination without notice. Roggenthin sued and the case ended up before the labor court. The representatives of Bag-S contradicted the sociologist's account. The employment relationship had already been strained for years, among other things due to the exceeding of authority. The hearing ended with a settlement. However, the question remains: are employers allowed to tell their employees to change their gender?

What is the legal situation?

Only very few employment contracts are currently likely to contain provisions that oblige employees to use gender. However, such an obligation could arise from the employer's right to issue instructions. This right is regulated in Section 106 of the Industrial Code and entitles superiors to specify the structure of the employment relationship beyond what is regulated in the contract. This means that if the boss prescribes gendering, the employee must comply with this order. However, this only applies if such an order is not considered "unreasonable" for the employee. This could be the case, for example, if the employee is instructed to write a text in which he or she is named as the author. In this case, the gender instruction could interfere with the employee's personal rights - and the employee could refuse to use gender.

Limits of the right of direction

For Klaus Roggenthin, this distinction is no longer relevant. He accepted the settlement offer from Bag-S. Also because the company threatened to terminate the contract without notice. "I'm not happy with the result," says Roggenthin. And adds: "On the positive side, the process has made it clear that gendering is by no means always voluntary." It remains to be seen what impact the outcome of the trial will have on future proceedings. To date, there is no clear case law on the subject in Germany.