The vast majority of employers in Germany should be aware by now that caution is required when formulating job advertisements in order to avoid being confronted with accusations of discrimination and the associated claims for damages. The “(m/f/d)” after the position title of the advertised job is now standard when posting job ads.
Less well known – but by no means less relevant – is the fact that the German General Equal Treatment Act compliance must also be meticulously observed during the rest of the application process.
Their presumed ignorance has now cost a Bavarian company dearly, as it was ordered to pay compensation of EUR 2,500.00 to a rejected applicant (plaintiff) in a ruling by the Nuremberg Regional Labor Court of December 13, 2022 (Case No.: 7 Sa 168/22) because, in the court’s view, the company had directly discriminated against the plaintiff on the basis of his gender.
This is how it all began:
The advertisement of the vacant position by the employer – a producer of model cars – was still almost textbook, at least with regard to the General Equal Treatment Act.
The company was looking for an “employee (m/f/d) for [their] digital printing press”. The job profile required potential applicants to have “dexterity/skill“, among other things.
The plaintiff applied for this position in April 2021, but received a rejection from the employer’s authorized signatory on the same day. With this rejection the employer set their own misfortune into motion.
The rejection letter to the plaintiff stated that the tasks to be performed were “rather something for nimble female hands“, which is why the applicant could unfortunately not be considered in the selection process.
Around six weeks later, the plaintiff asserted compensation claims against the employer amounting to at least three months’ gross salary. As a result, the plaintiff was invited to a trial work session, but refused to accept this offer.
In June 2021, the plaintiff brought an action before the Nuremberg Labor Court and demanded payment of appropriate compensation in the gross amount of at least EUR 8,000.00.
The defendant tried unsuccessfully to defend their actions by claiming that the wording used in the rejection letter merely described the dexterity and nimble fingers required for the job. The intention was to emphasize the outstanding importance of small hands and delicate fingers for the position to be filled. The reason for the rejection of the plaintiff was therefore not his gender, but the fact that his hands were simply too large for such precision work. The company had come to this conclusion after viewing photographs of the plaintiff that were freely available on the internet.
However, the Nuremberg Labor Court did not accept this line of argument, but affirmed unjustified direct discrimination on the grounds of gender and ordered the defendant to pay the plaintiff EUR 3,300.00.
The employer was also only successful to a very limited extent in the second instance. The Nuremberg Higher Labor Court also affirmed direct gender discrimination to the detriment of the plaintiff. Only the amount of the compensation payment decreased to EUR 2,500.00 and thus 1.5 gross monthly salaries.
The decisive factor for the rejection was the alleged life experience of the authorized signatory of the defendant, according to which women regularly cope better with the required small-scale work than men do.. However, this represented a prohibited discrimination of the plaintiff because of his gender, especially since he had no opportunity to refute this life experience by means of a trial work session.. The defendant’s subsequent offer to the plaintiff to provide such a trial work after all had served primarily as an attempt to avoid an action for compensation and had not been an expression of an honest interest in the plaintiff’s ability to work. Therefore, the corresponding argument of the defendant was irrelevant. Only a reduction of the compensation amount was justified, since the effects of the discrimination on the plaintiff were relatively mild. In particular, he had already been able to establish another employment relationship shortly after the rejection. Therefore, compensation in the amount of 1.5 gross monthly salaries – half of the maximum possible compensation amount – seems appropriate.
The decision shows that even some 17 years after the General Equal Treatment Act came into force, not all of the containing pitfalls are common knowledge. For example, not only must a job advertisement be non-discriminatory, but the entire application process, and thus also and especially rejections of unsuccessful applicants, must not constitute prohibited discrimination. The latter, in particular, is unproblematically implementable. The law does not provide for an obligation on the part of the employer to give unsuccessful applicants a – substantiated or unfounded – rejection letter.
While the imperative of politeness might conflict with the total renunciation of a rejection letter, unfounded or, at best, loosely justified rejection letters are anything but rare. This may be frustrating for the applicants concerned in individual cases. However, not at least the present decision shows that, in case of doubt, less can be more.
In addition, the prohibitions of discrimination of the General Equal Treatment Act do of course not only apply in the application procedure, but must be observed at all times in the entire employment relationship.
