Fake application failed to uncover age discrimination

The mere fact that there is an age difference between two job applicants who were treated differently does not necessarily indicate age discrimination.  For there to be an indication of discrimination, the two applicants must have comparable qualifications.   A job applicant, who clearly only applied for a position with the intention of claiming damages for age discrimination, sent two applications to the potential employer; his “real” application, as well as the application of a fictitious younger applicant with similar qualifications.  While the fictitious younger applicant was invited for a job interview, the real application was rejected without further explanation.  On this basis, the applicant claimed damages for age discrimination.   


The Higher Labour Court (Landesarbeitsgericht, LAG) Schleswig-Holstein (April 9, 2014 – docket number 3 Sa 401/13) found that carrying out this sort of research to identify discrimination is generally permissible under the General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz – AGG), however, that such research must adhere to the criminal law and not be abusive. While the Court found it questionable whether these requirements were actually met in the given case, it did not take a final decision as it did not affect the outcome. The claim was dismissed because there were sufficient indications of non-discriminatory selection by the employer: the fictitious experience of the younger applicant was more up to date than the applicant’s real experience.