Failure of a public employer to invite a severely disabled individual to a job interview does not always indicate an unlawful discrimination

Sec. 82 sentence 2 of Volume IX of the German Social Code (SGB IX) states that if a severely disabled person has applied for a job with a public employer or they have been suggested by the Federal Labour Office (Bundesagentur für Arbeit), they must be invited to an interview. Failure to invite a severely disabled employee in violation of this provision indicates an unlawful discrimination. The Labour Court in Ulm (Arbeitsgericht Ulm) decided on 2 August 2016 (docket number 5 Ca 86/16) that no such assumption of discrimination on account of a disability can be made if the employer is specifically looking to hire an individual with a disability.

By a job advertisement the defendant sought an employee for the position of community representative for the disabled, seeking a candidate who has appropriate higher education as well as having a disability or a close connection to another person with a disability. The plaintiff has a disability with a grade of 100, the highest grade possible. He successfully concluded studies in history and social sciences. The plaintiff applied within the application deadline with by e-mail on 31 August 2015. The defendant did not invite the plaintiff for an interview because he did not have the requisite professional competence and informed the plaintiff by letter on 13 October 2015 that he had chosen another applicant. The plaintiff then claimed damages, alleging unlawful discrimination.

The lawsuit in front of the Labour Court in Ulm (Arbeitsgericht Ulm) was dismissed. Even if the plaintiff obviously had the professional competence suitable for the advertised position and even if the employer had violated his duty according to sec. 82 sentence 2 of Volume IX of the German Social Code (SGB IX), no one would assume discrimination because of a disability in respect of the plaintiff because of the specifics of the present case regarding the job advertisement. If the employer is mainly concerned with engaging a person with a disability, there is no assumption that the employer disadvantages a (severely) disabled person because he has not followed his duty according to sec. 82 sentence 2 of Volume IX of the German Social Code (SGB IX) to invite to the interview.