New BAG decision on the AGG

After employers experienced little excitement with regard to the General Act on Equal Treatment (AGG) in the past years- except for some so-called “AGG hoppers” – there is now a reason to pay attention, after a considerable personnel change to the bench of the 8th Division of the Federal Labour Court (BAG), which is, amongst others, responsible for compensation claims according to the AGG. The division took one of the first decisions as a reason to clean up the previous court rulings and redefine the requirements for a compensation claim.

The case:

The graduate plaintiff, who was born in 1953, had been working as a lawyer in private practice. He passed his exams in 1979 and 1983 with a satisfactory result. The defendants operated a highly specialised law firm where only honours-level lawyers were employed. In November 2012, the defendants published a job advertisement in a law journal with, amongst others, the following content:

• To expand our team, we are looking for a lawyer (m/f) with 0 to 2 years of professional experience for the fields of…

• We offer first-class working conditions in a professional environment and a long-term perspective in a young and dynamic team.

• We expect … first-class legal qualification. Ideally, applicants with professional experience have worked in a business consulting law firm in one of the fields Public Law or Real Estate Law.

The plaintiff applied for the advertised job. Without being invited to an interview, he received a rejection that did not include any reason with the usual regret.

The plaintiff then asserted claims for compensation and damages. He was of the opinion that the rejection of his application was based on discrimination due to his age. According to the job advertisement in the law journal “Neue Juristische Wochenzeitschrift” (NJW), the defendants expressly expected professional experience of only “0 to 2 years” and announced the work in a “young and dynamic team”. This circumstance justified the assumption that he was disadvantaged due to his age.

The plaintiff was unsuccessful at the Labour Court (ArbG) and at the State Labour Court (LAG). Essentially, both courts assumed that the plaintiff did objectively not fulfil the requirements profile due to his lack of qualification. He was therefore not entitled to assert any claims. His application was subjectively not serious and was only made to receive compensation. The BAG cancelled the decisions and awarded compensation to the plaintiff in the decision dated 19 May 2016.

You must take some aspects of this decision into account in your future job advertisements:

• For a possible claim for damages, it is sufficient that a person applies for the advertised job. Contrary to the previous case law, the objective suitability or the subjective interest of the applicant is no longer required.

• Discrimination due to age is already indicated if applicants with professional experience of 0 to 2 years are sought in a job advertisement for a young and dynamic team.

• A justification of discrimination due to age is very difficult and subject to strict preconditions. The employer must present in detail and prove that reasons other than the applicant’s age were exclusively decisive for the rejection.

• The question whether an application was “not serious” because the person has not applied to receive the advertised job, but in order to claim compensation, concerns the question if this person has procured the formal status as applicant in terms of Section 6 (1) clause 2 alt. 1 AGG in violation of good faith and therefore opened up for itself the personal scope of application of the AGG contrary to good faith, which is why the utilisation of this legal position could be opposed by the vigorous plea of abuse of legal rights. This must also be presented and proven by the employer. The plea of abuse is not effective if the application can have an explanation other than the gain of an advantage.

In consideration of this decision, it is to be expected that the competent division, whose course will be followed by lower courts, will extend and intensify the AGG’s prohibitions of discrimination, particularly discrimination due to age. The requirements to be met by the employer’s submission of legal abuse are so strict that an employer will probably not be successful in providing the necessary submission. Therefore, you must avoid all statements in job advertisements that refer to age, such as the search for a “job starter”, a “young professional”, “young and dynamic applicants” or such applicants for a “young and dynamic team”. The search for a “junior employee” is probably problematic as well.

The advertisement for a job that is suitable “also for job starters” should remain permissible.