Age discrimination within the recruitment process and the burden of proof of justification

By judgment of 15 December 2016  (BAG, docket number 8 AZR 454/15), the Federal Labour Court has ruled that the employer bears the burden of proof for justification within the meaning of sec. 3 para 2 half sentence 2 of the General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz, AGG) .

In the present case, the plaintiff claimed compensation due to age discrimination in the recruitment process. The defendant is a company who runs a web portal and employs about 400 employees with an average age of 27. It published a job advertisement, looking for a “Junior Consultant for the Accounts payable department (m/f)” and searched for a “person who has just finished commercial training”. The 36 year old applicant had a corresponding level of education as an industrial clerk and had worked as an accountant for more than 10 years but his application was rejected by the defendant. The plaintiff claimed EUR 2.750,00  compensation cf. sec. 15 para 2 of the General Equal Treatment Act. In the first instance the Labour Court allowed the plaintiff’s claim. The higher court agreed with the Labour Court and therefore rejected the defendant’s appeal.

The Federal Labour Court confirms the decision of the Labour Court that the plaintiff was indirectly discriminated against by not being employed, according to sec. 3 para 2 of the General Equal Treatment Act. However, the Federal Labour Court stated that the requirement, as described in the job advertisement, also directly discriminated against older persons, like the plaintiff, compared with younger persons in terms of sec. 3 para 1 of the General Equal Treatment Act.

In case of a presumption of discrimination the other party bears the burden of proof for justification, that there is no breach of the principle of equal treatment. The defendant neither disproved this presumption nor explained why direct discrimination according to sec. 8 para 1, 10 of the General Equal Treatment Act would be permitted. The requirement for a “person who  has just finished commercial training” discriminates against older persons. In general, applicants with longer professional work experience are typically older than job starters. The requirement would indirectly impact on age and is not justified in accordance with sec. 3 para. 2 of the General Equal Treatment Act. The defendants’ general statement that the requirement ensures a good atmosphere in the workplace as a person who has just finished commercial training contributes to a “better relationship of subordination and flexibility”, is not sufficient.

In order to avoid  compensation claims against the employer, job advertisements always needs to be drafted in a gender and age neutral manner.