Federal Labour Court, 19.08.2010, Ref.: 8 AZR 530/09
According to § 11 i. in conjunction with Section 7 of the General Equal Treatment Act ("AGG"), a position may not be advertised in violation of the prohibition of discrimination. In particular, this also includes the age-neutral advertising of the position (even if § 10 AGG considers different treatment due to age to be permissible within certain limits).
Facts: Age discrimination in job applications
The plaintiff, born in 1958, applied for a position advertised by the defendant as a fully qualified lawyer. The job advert was looking for a "young, committed fully qualified lawyer". Following his application, the plaintiff received a rejection, while a female lawyer born in 1977 was offered the position. The plaintiff then demanded compensation of €25,000 from the defendant. He argued that the rejection was based on age discrimination, as the advert was explicitly looking for a "young" candidate.
Judgement of the lower courts: Partial compensation
At first instance, the court ruled in favour of the plaintiff, ordering the defendant to pay compensation amounting to one month's salary. However, the claim for higher compensation was dismissed. The Munich Regional Labour Court (LAG) confirmed this ruling by dismissing both the plaintiff's appeal and the defendant's cross-appeal.
Decision of the Federal Labour Court (BAG): Discrimination yes, but limited compensation
The Federal Labour Court (BAG) agreed with the view of the lower courts. It ruled that the wording of the job advertisement should be seen as an indication of age discrimination. The reference to a "young" candidate implied an age-related disadvantage. The decision to award the plaintiff compensation was therefore justified. However, the BAG clarified that higher compensation, as claimed by the plaintiff, was not appropriate as he could not prove that he would have been given the job without the discrimination.
Conclusion: Appropriate compensation for age discrimination
The judgement of the BAG shows that a discriminatory job advertisement is seen as a strong indication of age discrimination. Nevertheless, the amount of compensation was limited as the plaintiff was unable to prove beyond doubt that he would have got the job if the discrimination had not occurred. In such cases, compensation can be awarded, but significantly higher compensation is only justified under certain conditions. One month's salary was therefore deemed appropriate.
Source: Federal Labor Court
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