When formulating job advertisements, too much creativity can be costly for the employer, as descriptions such as “digital native” / “reinforcement for a young, dynamic team” etc. can be seen as discrimination. -> digital natives discriminatory job advertisements
Structural age discrimination in working life can occur above all with fixed age limits, where clear reference is made to the (approximate) age of the applicant. The General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz - AGG) has been in force in Germany since 2006. The AGG protects applicants as early as the application phase for a job. Job advertisements from employers must therefore always be formulated in a non-discriminatory manner. This means that unequal treatment based on gender, ethnic origin, religion and ideology, physical / cognitive limitations , age and sexual identity is prohibited. Job advertisements must therefore be formulated very thoroughly and checked for impermissible criteria. Errors in the job advertisement can be very expensive for the employer if the rejected applicant asserts a claim for compensation (up to the amount of three gross monthly salaries).
This was the topic of a recent case in court:
In the judgment of 18.01.2024 of the Heilbronn / Germany Labor Court (file number: 8 Ca 191/23), it was decided that the term “digital native” in a job advertisement is an indication of age discrimination. A “digital native” is a person of the social generation who has grown up in the digital world. The so-called millennials (born between around 1981 and 1995) are among the first digital natives. The later cohorts in particular have grown up with new technologies in their everyday lives (internet, smartphones and other products of this kind).
In our case, a large company had advertised a position with the words that they were looking for a “digital native” who felt at home in the world of social media, live streaming, design and video editing. The employer tried to justify its wording by saying that it wanted to make the job offer sound casual and fluffy.
However, the Labour court took a different view and found that this wording was an indication of age discrimination, as it was based more on the age of the potential applicants than on their technical skills. The rejected applicant won the case.
This case clearly illustrates - the job advertisement text must be formulated in a non-discriminatory way - every word counts, especially when it comes to age and gender. This also applies to terms that could indicate certain age groups, for example GenZ, Millenials. The risk of discrimination is greatest with these two characteristics.
Here are a few more examples:
-Gender specific:
“We are looking for a young mother who has experience working from home.”
“We are looking for a young, dynamic man to join our team.”
-Age:
“Our company is looking to rejuvenate, so we are looking for fresh graduates under 30.”
-Marital status:
“The ideal candidate is one who does not want children or does not have young children.”
“The position is suitable for applicants who are not single parents.”
“We prefer experienced applicants with at least 5 years of work experience, under the age of 60.”
-Physical / cognitive limitations:
“People with disabilities need not apply.”
-Appearance:
“We are looking for a fit, athletic man of normal weight and athletic build.”
For characteristics such as religious affiliation / identification with the traditional values of a company / nationality, it depends on the individual case, as the specific nature of the position may make it necessary to pay attention to this. However, close attention must be paid to whether there are any objective incompatibilities here.
It is important to make job advertisements inclusive and neutral in order to promote diversity and equal opportunities.
I publish interesting questions about German employment law judgements on this blog regularly. If you need special advice tailored upon your individual case, don't hesitate to get in contact with me.
photo / source: designed by freepik.com