Karlsruhe Higher Regional Court, 13.09.2011, Ref.: 17 U 99/10
According to Section 1 of the General Equal Treatment Act ("AGG"), discrimination on the basis of personal characteristics such as "race", ethnic origin, gender, religion, ideology, disability, age or sexual origin should be excluded.
Sections 6-18 AGG standardise the protection of employees against discrimination. This labour law section of the AGG applies to employees and trainees, but also to job applicants.
According to § 7 (1) AGG, such employees may not be discriminated against on the basis of a reason specified in § 1 AGG; this also applies if the person who commits the discrimination only assumes the existence of a reason specified in § 1 AGG at the time of the discrimination.
The above-mentioned judgement of the Higher Regional Court of Karlsruhe had to deal with the question of whether a job advertisement for the position of managing director, which was only tailored to male job applicants, constitutes discrimination within the meaning of §§ 7 para. 1 in conjunction with 1 AGG. V. m. 1 AGG.
Introduction to the case
This case concerned a job advertisement commissioned by a medium-sized company. The law firm published two vacancies for the position of managing director in a newspaper advert. The advert called for skills in acquisition and in finance and accounting, but did not explicitly refer to gender diversity. After the plaintiff, a female lawyer, applied and was not considered, she claimed compensation of 25,000 euros for alleged discrimination.
Decisions of the courts
The Karlsruhe Regional Court initially rejected the plaintiff's claims for compensation as unfounded. The plaintiff appealed and the Karlsruhe Higher Regional Court (OLG) ruled partly in her favour on appeal. The OLG awarded the plaintiff compensation in the amount of 13,000 euros.
Violation of the General Equal Treatment Act
The OLG came to the conclusion that the job advertisement violated the prohibition of discrimination under the General Equal Treatment Act (AGG) in accordance with Section 7 AGG. According to the court, it is not permissible to specifically search for male or female candidates. A job advertisement is considered gender-neutral if it is addressed to both women and men. This can be achieved by using job titles in both male and female forms or by choosing gender-neutral terms.
Requirements for gender-neutral tenders
The court found that the requirements for a gender-neutral job advert were not met. In particular, it criticised the fact that no corresponding additions such as "/in" or "m/w" were used in the job advertisement. Such an addition would have been necessary in order to fulfil the requirements of the AGG and avoid discrimination. The judgement underlines the need for companies to adhere to gender-neutral wording in order to avoid legal consequences.
Source: Karlsruhe Higher Regional Court
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2 responses
You have to hire lawyers to formulate an admissible job advertisement.
For example, if I am looking for only men or only women, e.g. as a security/babysitter, which is 99.9% filled by a man/woman, it is pointless to waste the time of applicants and HR staff if a final decision is more likely to be made by the employer and is most likely to be gender-based as for the previous examples, but may not be expressed in direct terms. However, an illusion is to be created as if the position is equally available for both genders and therefore one has to "play along" to "do justice" to this 0.01%, although it contradicts common sense. Because of 0.01%, however, the loophole opens up for unproductive profits in large sums when suing and appealing in court to discredit equal treatment. This kind of profit is harmful to the economy, sends the wrong signals in terms of performance and is more destabilising than fruitful.