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Comments on applicant CVs might cost you

In a recent case (docket number: 8 AZR 753-13) the federal labour court (Bundesarbeitsgericht, BAG) once again had to decide on a discrimination case concerning the employment application process. The fully-qualified plaintiff applied for a job as a full-time accountant with the defendant. In her CV she declared her civil status to be “married, one child”. When rejecting the plaintiff’s application, the defendant sent back the application documents, including her CV. On the CV the defendant added the comment “7 years old” next to the civil status and had underlined the plaintiff’s statement “one child”. The plaintiff felt discriminated against based on her gender due to the fact, that she is a mother wanting to work full-time. The defendant claimed not to have committed any discrimination as he hired a married woman who in his view was simply more qualified.

While the higher labour court (Landesarbeitsgericht, LAG) believed that the plaintiff was indirectly discriminated against, basing its decision mostly on a statistic (sample census) of the percentage of wives with children employed as full-time employees, the federal labour court did not share this opinion. While indirect gender discrimination could in principle be demonstrated by a statistical investigation based on neutral criteria, the court ruled that the data in question would be irrelevant for the specific case of the plaintiff. Nonetheless, it held that the plaintiff might have been directly discriminated against based on her gender and the higher labour court will now have to interpret the comments made by the defendant on the plaintiff’s CV.

Consequently, employers must be aware that potentially judgmental comments on application documents can be considered by labour courts as a sufficient indication of possible discrimination which, according to sec. 22 General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz, AGG), shifts the burden of proof to the employer who then has to prove that in fact no discrimination occurred. In practice, this is often difficult for employers to establish in court. Therefore, employers should avoid any comments or remarks on original application documents that might have to be returned to the applicants.