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Created on Monday, 02 May 2011 19:09

Last Updated on Friday, 28 December 2012 18:59

Search for "Young" Job Applicants Violates the Equal Treatment Act

When you are not so young anymore but rather mature, it really hurts to read in job advertisements "young" candidate desired. Doesn't that violate the Equal Treatment Act? BAG gave its opinion to this question with its judgment of August 19, 2010 (re 8 AZR 530/09 [OPM]).

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52 year old Matthew passed all exams with "good" and has been a self-employed attorney since 1988. A company with the business of trading licenses posted an open position for a young, committed lawyer with at least satisfactory exams, first professional experience (up to 2 years) in the media and license trading business, etc. The assignments generally will be to negotiate and draft licensing contracts for the areas "program acquisition" and "international program sales". Please mention your salary expectation.

The company declined his application. Matthew noticed later that this company had hired a younger colleague not having as many credentials as himself. So he went to court and complained. In court Matthew applied for damages because he was not considered and that hiring the colleague was in violation of the Anti Discrimination Act. The damages were to consist of 25 k€ for pain ("Schmerzgensgeld" pursuant to §253 BGB) for the experienced age discrimination and the lost salary for one year. One year is in Matthew's opinion justified because the offer contained no time period and limited jobs could not be cancelled before the end of the employment period. He deemed 25 k€ as reasonable.

The firm argued in its defense that the age of neither person was relevant for the choice. Matthew's application was sorted out because only applicants from Munich and suburbs were of interest because of the costs for travel costs to be reimbursed for applicants to be interviewed and the firm did not want to demand that the applicant have to relocate.

The court partially dismissed the case. Matthew correctly assumed that he was discriminated by age. However, his dream of € 25,000 was far away from being reasonable in the opinion of the court. It considered in his case, that one month salary is reasonable and sufficient §15 II AGG. In contrast to his opinion, the court did not recognize a serious infringement of the law. Therefore, the salary for a month suffices. Matthew's argumentation of §22 AGG did not persuade the judges on amount of payment because that provision only shifts the burden of proof to show the discrimination itself - no more and no less.