Discriminatory job advertisement – No claim for damages if applicant was not “seriously” applying for the job

If an applicant applies for a job solely to bring a claim then he will have no claim for damages, even if the job advertisement violates the General Act on Equal Treatment (judgement of the Munich labour court dated 24 November 2016, docket number 173 C 8860/16).

A company advertised a voluntary job at a marketing agency in a local newspaper. The role required the employee to have frequent conversations with customers over the phone. The advertisement read, inter alia, “We are looking for a female employee with a friendly voice.”

The male applicant (and later plaintiff), who had an education as a banker, called the company to ask for an e-mail address for the application. He told the company on the phone that a female friend wanted to apply for the job. Subsequently, he applied for the job himself via e-mail. The company refused the application on the grounds that they had already selected “another male applicant” for the role.

The applicant sued the company for damages under the General Act on Equal Treatment on grounds that the employment advertisement was discriminatory. The company argued that the applicant was overqualified for the job and his application was not serious.

The labour court ruled in favour of the company. It argued that there was no need to determine whether the job was suitable for the applicant (although this was doubtful as he was clearly “overqualified” for the job). According to the labour court, the deciding factor was the fact that the applicant could not demonstrate a legitimate interest in the job and the application did not seem to be serious. In particular, it did not have sufficient references to the specific job offered. Rather, the e-mail sent by the applicant included unstructured text modules which indicated that it was used to apply for a number of different jobs without being modified accordingly.

Moreover, the labour court took into account the fact that the applicant had already sued several companies in the past, claiming damages for alleged violations of the General Act on Equal Treatment. In this context, the labour court referred to an e-mail from the applicant to a third party in which the applicant was talking about financing his cost of living by bringing discrimination claims to court.

The labour court concluded that the applicant was misusing the statutory provisions on discrimination in order to claim damages for financial gain. It ruled that, although the job advertisement of the company was in fact discriminatory, the applicant was not entitled to compensation under the General Act on Equal Treatment.