Job advertisements and the General Equal Treatment Act (AGG)
The General Equal Treatment Act (AGG) has massively changed HR work at companies since 2006. Since then, HR managers have had to take care when writing job advertisements, for example. Because even job advertisements have to be free of any form of discrimination. Discrimination arising from gender, age, ethnic origin, religion, disability or sexual identity, among others, is prohibited except for those allowed by law, for example Sections 5, 8–10 of the Equal Treatment Act (AGG).
In practice, any statements related to age require particular caution. It is especially easy to make imprecise statements in this regard, even unintentionally. This can prove expensive: For example, Section 15 (2) of the Equal Treatment Act (AGG) may even entitle the affected parties to claim compensation for application costs or other compensation amounting to up to three months’ salary or even more under certain circumstances.
Is the term “digital native” age discrimination?
A case before the Heilbronn Labor Court (decision dated 18 January, 2024, Ref:8 Ca 191/23) examined the possible case of age-related discrimination.
A company was looking to fill a social media position and advertised the position with the following text:
“As a digital native, you feel at home in the world of social media.”
This counted as age discrimination according to a 50+ applicant who took legal action against the company after his application for the position failed.
The court agreed. The Heilbronn Labor Court ruled that the wording “digital native” in the job advertisement discriminated against a 51-year-old applicant on the grounds of age and violated the prohibition set forth in Section 7 of the Equal Treatment Act (AGG).
According to the court, the decisive factor was the generational connotation of the term “digital natives”. By using this phrase, the company clearly stated that it is not only interested in specific expertise in the field of social media. In conventional usage, the term “digital natives” refers to people who have grown up with digital media and are, therefore, not over a certain age. It is generally assumed that digital natives were born after 1980.
Therefore, the plaintiff – who turned 51 in 2023 – is not a digital native. At the same time, the employer was unable to prove that the man’s age was not a decisive factor in his rejection.
Not a surprising verdict
The verdict comes as no surprise precisely because “digital natives” clearly refers to a group of people born after a specific date. Therefore, it was also no surprise that the court awarded compensation, even if the compensation of 1.5 months’ salary was significantly less than the three months’ salary demanded.
What can we do for you?
Do you need require support for issues related to the General Equal Treatment Act – whether in job advertisements or how to conduct non-discriminatory job interviews? Do not hesitate to contact us!
Summary of the key facts:
- The General Equal Treatment Act (AGG) prohibits discrimination related to age, gender, disability, etc. provided that there is no legal basis for unequal treatment. This also includes job advertisements.
- (Age-related) discrimination in a job advertisement may entitle those affected to demand significant compensation.
- Explicitly looking for a “digital native” when advertising a job opening is age discrimination and compensation claims from older candidates who apply unsuccessfully for such a job are a logical consequence.
