The objective suitability of an applicant is no condition for discrimination

The Federal Labor Court (Bundesarbeitsgericht) decided on 19 May 2016 (docket no. 8 AZR 470/14) that an applicant, who is not objectively suitable for the advertised position, is nevertheless in a comparable situation or comparable position within the meaning of sec. 3 para. 1 and 2 of the General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz – AGG) with other applicants. Therefore, even an applicable who is not suitable for a particular position may bring a claim of prohibited discrimination in the hiring process.

Born in 1953, the plaintiff holds a doctorate and works as a sole practitioner lawyer. He passed both legal state examinations with the result satisfactory (7 points). The defendant is a law firm, specializing in public and real estate law, and all lawyers hired by the defendant have passed both state examinations with final marks of at least 9 poins. In November 2012, the defendant published a job advertisement seeking a „lawyer (male/female) with 0 to 2 years of work experience“. Under “we offer” the announcement mentioned a “young and dynamic team”. Under “we expect” the requirement of a “high-class juridical qualification“ was mentioned. The plaintiff applied for the position but his application was not successful. The plaintiff brought a claim against this rejection, alleging age discrimination. The Labour Court (Arbeitsgericht) and the Higher Labor Court (Landesarbeitsgericht) rejected the action. The plaintiff’s appeal was successful.

Contrary to previous jurisprudence the Federal Labour Court decided that there can be a comparable situation even if  the applicant is objectively not suitable for the advertised job. In essence the reason for this is – according to the Federal Labour Court – that a standard of comparison that is too restricted would render practically impossible or excessively difficult the exercise of rights conferred by EU law.