Discriminating Job Advertisement

If, in a job advertisement, the employer offers a "future-oriented, creative cooperation in a young, highly motivated team", this is a fact which leads to the assumption that the 61-year-old applicant who is not hired is disadvantaged due to age according to Section 22 General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz, "AGG"). This has been decided by the Nuremberg Regional Labor Court (Landesarbeitsgericht, "LAG") with judgment of 27.05.2020 - 2 Sa 1/20.

Facts

The dispute between the parties concerns an alleged discrimination and resulting claims for damages.

The defendant placed a job advertisement online, seeking an employee for SAP application support. With regard to the career level, "career starter" was indicated. In the accompanying text, under the heading "We offer you", the following text was found: "Future-oriented, creative cooperation in a young, highly motivated team in a very interesting and varied subject environment ...".

The 61-year-old plaintiff applied for this position via the defendant's online portal. He holds a degree in business administration and has been working in the SAP area for many years. He also has various certifications and training in this field.

The defendant rejected the plaintiff's application after reviewing his documents as part of a preselection process on the grounds that it had decided on other applicants who would better meet the specific requirement profile.

After the Labor Court had condemned the defendant on payment of a compensation at a value of two monthly salaries and rejected the complaint in the remainder, the appeal of the defendant and the subsequent appeal of the plaintiff before the LAG remained unsuccessful.

Reasons for the decision

In the opinion of the LAG, the plaintiff had proved evidence that would suggest a disadvantage due to age (Section 22 AGG).

The formulation according to which the applicant is offered a future-oriented, creative cooperation in a "young, highly motivated team", causes a direct discrimination because of age according to Section 3 (1) AGG.

The term "young" is directly linked to age. This reference to age is reinforced by the connection with the term "highly motivated", which, like the term "dynamic", describes a characteristic that is generally attributed to younger rather than older people. If it is pointed out in a job advertisement that a future-oriented cooperation in a "young, highly motivated team" is offered, this reference regularly not only contains the message to potential job applicants that the members of the team are young and therefore highly motivated. From the point of view of an objective recipient, this can regularly only be understood to mean that an employee is sought who fits into the team because he or she is just as young and highly motivated as the members of the existing team. The assumption that one should only be informed about the fact that the team itself does not exist for a long time, is not obvious if this circumstance is not explained at the same time in the job advertisement. If this is not the case, the purpose of such a job description can only be to win a new employee who fits the existing team. Otherwise the job description formulated in such a way would be lacking in substance and thus be redundant.

Notes

According to the reasons for its decision, the Regional Labor Court has followed the case law of the Federal Labor Court (Bundesarbeitsgericht, "BAG"). The BAG had already decided in its ruling of May 19, 2016 - 8 AZR 470/14 that direct discrimination on grounds of age existed if the applicant was offered the prospect of a long-term perspective in a "young and dynamic team".

The BAG affirmed indirect discrimination on the grounds of age, for example, if the group of applicants was restricted to persons with "0 - 2 years of professional experience". Professional experience is a criterion which is apparently neutral within the meaning of Section 3 (2) AGG, and therefore no direct reference is made to a specific age. However, the criterion of professional experience is indirectly linked to the reason "age" mentioned in Section 1 AGG. This is because applicants with longer professional experience typically have a higher age compared to job entrants and applicants with first or short professional experience (BAG, ruling dated 19.5.2016 - 8 AZR 470/14).

It is therefore important to ensure that a job is not advertised in violation of the discrimination prohibitions in Sections 1 and 7 of the AGG. Job advertisements that violate Section 11 AGG justify the presumption according to Section 22 AGG that the rejection of an applicant who belongs to the discriminated group of persons was based on this reason. Although this does not result in a claim for employment for the rejected applicant, he/she can refer to a fault-based claim for damages as well as compensation claims according to Section 15 (1), (2) AGG.