Since the General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz – AGG) has entered into force in 2006, the protection against discrimination has been brought to a new level in Germany. The purpose of the law is to prevent discrimination on the grounds of criteria such as gender, age and religion. To enforce this purpose, the employer is obligated to compensate employees for any pecuniary and non-pecuniary damages incurred due to a discrimination. Applicants who claim that they were not hired due to a discrimination in the application process can also assert such damage claim. Applicants and employees only have to present indications for an adverse treatment due to a criteria protected under the law. If they do so, it is on the employer to prove that no discrimination took place.
In a recent case before the labour court in Karlsruhe, Germany, an applicant had sued an employer for compensation. The applicant accused the employer of having violated the prohibition of discrimination through a job advertisement. In 2019, the defendant had advertised a position as secretary in the office of the managing Chief Church Councilor. Applicants had been asked in the job advertisement to state their religious belief in their application. The plaintiff stated in her application that she was undenominational.
An interview took place with the plaintiff; however, the position was given to another applicant. Subsequently, the rejected applicant sued the employer for compensation in the amount of EUR 10,000.00 under the General Equal Treatment Act. The court awarded the plaintiff compensation in the amount of 1.5 monthly salaries of the advertised position, which was an amount of approximately EUR 5,000.00.
The court found that the applicant had been discriminated against based on her religion. The job advertisement that asked all applicants to reveal their religious affiliation indicated such discrimination, which meant that it was on the employer to prove that no discrimination took place. This is difficult in practice and hence the employer in the case at hand failed to do so. The court found that through the job advertisement, the employer indicated that the religious affiliation was important for the hiring decision. Considering the religion of the applicants during the hiring process may be justified if the religion is a reasonable occupational requirement. However, this was not the case here. Even if the work to be done was church-related, this did not justify to take the religious affiliation into account in the recruitment process, as it is not apparent why a secretary needs a specific religious affiliation to be suitable for the position. The court at least considered to the favor of the employer, that the plaintiff had been invited to an interview and hence set the compensation at EUR 5,000.00 and not at the requested EUR 10,000.00.
This case again shows the practical significance of the General Equal Treatment Act to the hiring process (i.e. the Act is applicable even prior to employment). Employers should always draft job advertisements carefully and in consideration of the criteria of the General Equal Treatment Act.
For more information on these articles or any other issues involving labour and employment matters in Germany, please contact Dr. Tobias Pusch (Partner) of Pusch Wahlig Workplace Law at firstname.lastname@example.org or visit www.pwwl.de.