Obstacles of job postings

By now, general knowledge has spread that job postings require non-discriminative wording in terms of race, ethnicity, gender, religion or worlview, handicap, age or sexual identity. While theoretically clear-cut, many pitfalls remain when actually implementing these rules in practise. The Higher Labour Court of Nuremburg just recently ruled that the wording “Collaboration in a young, highly motivated team” may be regarded as discriminatory in regard of an elder applicant to the job.

In the specific case the court dealt with, an employer searched an “Employee SAP Application Support (m/f/d)”. The job posting classified the job’s career level as “first-time employees”. The accompanying description under the headline “What we are offering” read “Future oriented, creative collaboration in a young, highly motivated team in a very interesting and varied field of matters …”. The posting demanded submission of “convincing application documents (such as CV and a complete set of certificates)”.

The 61-year-old plaintiff had applied to the job. The employer declined his application within the preselection phase, arguing that other applicants had fulfilled the job specifications better. The plaintiff understood the response as an age discrimination and sued for compensation.

During the action, the employer argued that the very wording only described the character of the already employed team, while not setting any specific requirements for applicants. According go the employer, the plaintiff’s application had to be rejected due to missing certificates.

The Labour Court of Würzburg classified the job posting’s wording as an inadmissible discrimination and decided in favour of the plaintiff. The Higher Labour Court in Nuremberg upheld this decision in its verdict dating the 25th May 2020 (ref. no. 2 Sa 1/20). According to the ruling the used wording, saying that an applicant was to be deployed within a “young highly motivated team”, gives cause to the assumption that the applicant has been discriminated due to his age during the selection process.

The Higher Labour Court ruled that the terms “young” and “highly motivated” generally described features that are usually attributed to younger persons more than to elder persons. The term “highly motivated” specifically is comparable to the term “dynamic”, attributes that are usually credited with younger persons, the court said. The court stressed that the wording did not lead to the conclusion that solely the members of the already existing team are young and highly motivated. In fact, the given wording did have to be understood in a way, that the employer was looking for an employee who would fit into the existing team by offering similar features as the rest of the team.

The court wrote further that the employer did not present sufficient reasons as to why the plaintiff had not been considered in the selection process beyond the mentioned discriminatory aspects. Hence, the court ruled that the employer did have to pay a compensation of two (fictitious) monthly wages to the plaintiff.

The decision stresses the importance of careful and deliberate phrasing of job postings in order to avoid retrospective actions from rejected applicants.

 

Do you have questions in regard to the wording of job postings or labour law related questions in general? We will be happy to give you advice! Please contact us at central@schaffrathlaw.de, by phone at +49 351 44753 0 or visit our website www.schaffrathlaw.de.

 

By your side

 

Schaffrath & Metzmacher Team

December 30, 2020

Susann Liebelt

Valentin Schaffrath

Valentin Schaffrath

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