Refusing to use gender: Is that grounds for dismissal?

There is no legal obligation to use gender-neutral language in Germany. Neither employment law nor other legal norms stipulate that employees must use gender-neutral language. Nor can such an obligation be derived from equality or anti-discrimination regulations.

First of all, the omission of gender-neutral language does not in itself constitute a violation of the law.

Employers may determine the content, location and type of work performance within the scope of their right to issue instructions. In principle, this can also include setting guidelines for internal or external communication - for example with regard to tone, style or corporate language.

However, this right to issue instructions is not unlimited. Instructions must be based on reasonable discretion and must not interfere disproportionately with the rights of employees. It becomes particularly problematic when language requirements not only serve organizational purposes, but can also be understood as an expression of a certain ideological stance.

Employment law protects the personal convictions of employees. No one is obliged to represent a particular political, social or ideological stance in the course of their work - not even indirectly via language requirements.

If an employee refuses to use gender for personal or linguistic reasons and otherwise fulfills their contractual obligations, this is generally not sufficient to justify sanctions under employment law according to current legal opinion.

According to the previous assessment of the labor court, the following applies: the mere refusal to use gender-equitable language does not constitute sufficient grounds for dismissal. Neither conduct-related warnings nor ordinary dismissal can be based on this without further ado.

Dismissal always requires a significant breach of duty. Simply sticking to the classic German language is not enough - especially if the communication is factually correct, respectful and non-discriminatory.

The AGG protects employees from discrimination based on their gender or ideology, among other things. Although gender itself is not a protected characteristic, a dismissal can still be problematic if it is in fact linked to personal beliefs.

Employers run the risk here of exerting undue pressure or exceeding the limits of equal treatment.

Employers should clearly justify language requirements, make them proportionate and not impose sanctions under employment law. Employees do not have to accept every language requirement as long as they do their work objectively, respectfully and properly.

In the event of a conflict, it is advisable to obtain legal advice at an early stage before issuing or accepting warnings or dismissals.

Conclusion

Dismissal solely because of a refusal to use gender-neutral language is generally not tenable under employment law. The employer's right to issue instructions reaches its limits where personal convictions are affected and no primary contractual obligations are breached. Both employers and employees should handle the issue sensitively and with legal certainty in order to avoid unnecessary escalation.