On 29 June 2017 the Federal Labour Court ruled that a “rejection of an application” by a company requires an explicit or implied statement from the company that can be interpreted by the applicant in the way that his application was not successful. Only if such statement is received the two months period for asserting claims for damages due to a violation of the General Act on Equal Treatment commences (docket number 8 AZR 402/15).
If a job application is rejected by the potential employer for reasons which constitute a violation of the prohibition of adverse treatment, the applicant can claim damages under the German General Act on Equal Treatment. Sec. 15 para. 4 of the General Act on Equal Treatment states that such a claim for damages must be asserted in writing and generally “within a period of two months” (exceptions apply in case of deviating regulations in collective bargaining agreements). It further states that “this period [of two months] shall begin to run in the case of a job application […] upon receipt of the rejection”.
In the case at hand a company advertised for short term work in an office for the time period 18 March – 17 May 2013. The job advertisement violated the General Act on Equal Treatment as it stated that “German as mother tongue” was required for applicants. The applicant and later plaintiff, whose mother tongue is Russian, applied for the job in February 2013 and, at first, did not get any response from the company. Only after actively asking the company several months later in September 2013, the applicant was informed that his application had not been successful. The applicant claimed damages in the beginning of November 2013.
The Federal Labour Court ruled that the job advertisement was discriminatory and that the applicant was entitled to damages. In particular, the Federal Labour Court held that the applicant asserted his claims in time as the two months period of sec. 15 para. 4 of the General Act on Equal Treatment did not commence before the applicant received the response from the company in September 2013. The Federal Labour Court emphasized that a “rejection of an application” within the meaning of sec. 15 para. 4 of the General Act on Equal Treatment did not require a “formal letter” from the company. However, a “rejection of an application” in terms of Sec. 15 para. 4 of the General Act on Equal Treatment requires an explicit or implied statement from the company that can be interpreted by the applicant in the way that his application was not successful. If a company does not react at all, the requirements for such a “rejection” are not fulfilled.
The decision of the Federal Labour Court shows that applicants are not excluded from claiming damages under the General Act on Equal treatment even several months after their application, if their application had not been properly rejected by the company yet. As a result companies should not only avoid discriminatory job advertisements but also make sure to explicitly reject the applications of applicants they do not want to hire.