On 23 November 2017 the Federal Labour Court (Bundesarbeitsgericht, BAG) ruled in two parallel proceedings, each with the same plaintiff, on compensation claims for an alleged infringement of the principle of non-discrimination under the General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz, AGG) on the basis of two job advertisements. The first position required a completed degree, or that the applicant was about to graduate, as well as very good German and English language skills (docket number 8 AZR 372/16). The second position was advertised by a company that described itself as being “young, dynamic” (docket number 8 AZR 604/16). The defendants rejected the applications made by the plaintiff. As a result the plaintiff brought claims for compensation, inter alia, due to discrimination on grounds of age and ethnic origin. In support of this the plaintiff referred to the wording of the job advertisements.
The Federal Labour Court stated that applicants who consider themselves wronged because of a breach of the principle of equal treatment satisfy the burden of proof if they can present evidence that indicates, with overwhelming probability, that a disadvantage has occurred due to the reasons stated in sec. 1 General Equal Treatment Act.
Advertising a position which is contrary to the principle of non-discrimination, may justify the finding that an unsuccessful applicant was disadvantaged in the selection procedure and it is then down to the employer to refute the allegation. In the present cases however, no such evidence was provided.
“Being about to graduate” (8 AZR 372/16) and “young, dynamic company” (8 AZR 604/16)
It was held that “being about to graduate” did not refer to an exact age and it was not to be understood as a requirement that only addressed young applicants. According to the Federal Labour Court, older people would not have been seriously discouraged from submitting their applications and thus, it did not suggest discrimination because of age. The same applied to the company’s statement that it is ‘a young, dynamic company’ as this was held to be enterprise-related information that did not refer to the workforce or the desired applicants. However, it was suggested that this decision could be different if the company was, in fact, an old business or the terminology referred to a specific “team” and not the company as a whole.
“Very good German and English language skills” (8 AZR 372/16)
The Federal Labour Court elaborated that the request for the applicant to have very good knowledge of the German and English language was an expression of entrepreneurial freedom and not discrimination because of ethnic origin. It was not evident that this requirement was a mere pretext and the demand for two languages counters an inseparable connection with a particular ethnic group. The Court referred to its ruling of 15 December 2016 (docket number 8 AZR 418/15) and clarified that the case would be different if the job advertisement was exclusively and directly related to a native language, e.g. “German as mother tongue”. The mother tongue is connected to a linguistic area and to the ethnic origin of the person. This is different to other language skills as they can be taught and be evaluated in tests.
These judgements demonstrate that although the applicant generally has a favourable burden of proof, unsubstantiated allegations cannot give rise to a presumption to the detriment of the employer. A job advertisement is interpreted according to its objective content, whereby the court will take into account what the average applicant is likely to understand. The employer can rely on this objective interpretation. To survive on the market the employer can stipulate professional requirements. As long as there is no evidence that the demand for specific qualifications is merely an excuse, this does not constitute discrimination, e.g. because of ethnic origin. However, employers should avoid asking applicants to have a specific “mother tongue” language.