Gender refusal: Do employees face dismissal?

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

Gendering is now on everyone’s lips. Universities, public authorities and also more and more companies are obliging their employees to use gender-appropriate language. This leads to legal disputes, as a case from Bonn now proves.

Gender refusal led to dismissal

For eleven years, Dr. Klaus Roggenthin had been executive director of the Federal Working Group for Prisoners (Bag-S for short). 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,” Roggenthin said in an interview. His employer’s response was prompt – in the form of summary dismissal. 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 because of competence transgressions. The trial ended with a settlement. However, the question remains: Are employers allowed to prescribe gendering to their employees?

What is the legal situation?

Only very few employment contracts are currently likely to contain provisions requiring employees to gender. However, such an obligation could arise from the employer’s so-called right of direction. This right is regulated in Section 106 of the Trade, Commerce and Industry Code and entitles superiors to specify the form of the employment relationship even beyond what is regulated in the contract. This means that if the boss prescribes gendering, the employee must comply with this instruction. However, this only applies if a corresponding 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 would be likely to refuse to gender.

Limits of the right of direction

For Klaus Roggenthin, this distinction is no longer relevant. He accepted Bag-S’s settlement offer. Also because the company threatened otherwise with extraordinary termination. “I am not satisfied with the result,” says Roggenthin. And adds, “On the positive side, the lawsuit has made it visible that gendering is by no means always voluntary.” What impact the outcome of the trial will have on future proceedings remains to be seen. So far, there is no clear case law on the subject in Germany.