The failed application and the compensation according to the anti-discrimination law
> December 2016
The German Federal Labour Court (Bundesarbeitsgericht – BAG) changes their judicature and gives up their previous view regarding the condition of general suitability of the applicant under the German General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz (AGG).
Experienced human resource specialists will be aware of the liability trap. Apparently unsuited candidates apply for a vacant position. This “smells“ of an application which is not meant seriously and only serves to provoke a rejection to then later make a claim for indemnity according to article 15 of the AGG which is colloquially also referred to as the anti-discrimination law. According to the judicature of the BAG up to now, an applicant always had to be also “objectively suited“ for an advertised position to be in a “comparable situation“ or “comparable position“ to the other candidates at all. Such a comparable position respectively comparable situation is, according to article 3 section 1 respectively section 2 of the AGG the prerequisite for indemnity claims. Only those complying with this prerequisite could have any chance for success at all as “provocateur“. So, it was no problem to separate out those applications which were objectively not suited.
Now the BAG has turned away from this judicature. With the court decision of 19.05.2016 recently published, the BAG has explicitly considered an indemnity claim possible inspite of the applicant not being objectively suited. Considerations of the European Union were given as an explanation. Consequently, from now on also objectively unsuited applicants have to be treated carefully.
A case for this change of view was a case from the legal profession. A law office wanted to attract applicants with extraordinarily good grades and phrased their job advert accordingly. In itself, this is an objective criteria. It would not have been possible to consider this a discrimination in the sense of the AGG.
However, the law office also mentioned in their job advertisement that they were looking for a lawyer with 0 to 2 years professional experience. This specification implies an indirect discrimination for older applicants due to their age. This again would, according to the AGG, not be permitted.
The law office rejected the application of an applicant born in 1953 whose final grades were below average for being objectively unsuited with reference to the final grades. The suit the rejected applicant had filed was declined by both lower instances on grounds of the jurisdiction of the BAG applicable until 19.05.2016. Both instances explained their decision with the fact that the applicant was objectively unsuited and therefore the examination of the discrimination due to age of applicants was no longer applicable.
According to the new judicature of the BAG, however, to begin with all applicants are in a comparable position. The fact is that they are all applicants. As the law office stated in their job advert to only look for lawyers with professional experience there was nothing to prevent a possible discrimination of the applicant due to the age. The final decision will have to be made by the state labour court (Landesarbeitsgericht). The BAG has referred to the lower instance for those questions.
Conclusion: In job adverts the employer should never give any cause for his recruiting process to lead to the kinds of discrimination mentioned in article 2 of the AGG. Also, applicants who are obviously not suited must not be rejected carelessly. If there is any doubt it is recommended to rather hold one job interview too many to then be able to reason with the lack of conviction of the applicant.
