Germany: Job Advert Discrimination

A German Labour Court recently held that the use of non-gender-neutral wording in a job advertisement gave rise to a presumption of direct discrimination, entitling the rejected applicant to compensation.

Facts

A job was advertised in German on the online platform “Indeed” for a “commercial employee/office administrator/secretary” in each case using the female form of the noun. The rest of the advert did not contain any other gender-specific provisions regarding the requirement or nature of the role.

The claimant applied for the role and shortly after, received a rejection.

The claimant then claimed that he had been rejected based on his gender which constituted unequal treatment and was therefore discriminatory.  He sought the compensation available under the law.

Court Decision

The court ruled that the claimant was entitled to compensation for discrimination.  It rejected the defendant’s arguments that:

• the advertisement merely contained a linguistic error and that there was no gender-based preselection.
• the role was ultimately filled by a male applicant;
• the defendant had placed numerous gender-neutrally worded advertisements during the same period;
• there were other reasons for rejecting the application of the claimant;
• the claimant was actively bringing multiple similar claims, against other employers.

The court found that these arguments were not sufficient to override the legal reversal of the burden of proof in this specific claim.  The advertisement gave rise to the assumption of direct discrimination. To rebut this, the defendant would have had to show an objective, standardised selection process exclusively for filling the position in question, which it had failed to do.

Conclusion 

Language matters when it comes to discrimination.

This is a high-level general update only. Legal advice should be obtained on specific circumstances.