Labour law

Age discrimination in job advertisements by searching for “digital native”

In a remarkable decision, the German labor court in Heilbronn (case no. 8 Ca 191/23) dealt with the issue of age discrimination in job advertisements. The focus was on the use of the term “digital native” and its implications for older applicants.

Facts: What was it about?

A business law graduate born in 1972 filed a lawsuit against an international sporting goods company for age discrimination. He applied for an advertised position but was rejected. The job advertisement contained the term “digital native”, which the plaintiff interpreted as a reference to a preferred younger target group.

What does discrimination mean in general – and in concrete terms?

Discrimination refers to the disadvantaging or preferential treatment of people based on certain characteristics such as age, gender or origin. In this case, it was a question of age discrimination, whereby it was assumed that the phrase “digital native” implicitly favors younger applicants and discriminates against older ones.

In legal terms, the General Equal Treatment Act (AGG) should be referred to here. The aim of this law is to prevent or eliminate discrimination on grounds of gender or age, among other things. In the event of a breach of this prohibition, the disadvantaged party can claim damages or appropriate compensation. If a job applicant is rejected in violation of the prohibition of discrimination, the court may award compensation of up to three months’ salary. This also applies if the rejected applicant was not the best qualified:

According to § 15 Para. 1 Sentence 1 GG the employer is obliged to compensate the resulting damage in the event of a violation of the prohibition of discrimination under § 7 Para. 1 AGG . In accordance with § 15 para. 2 sentence 1 AGG the employee may demand appropriate monetary compensation for damage that is not financial loss. However, this may not exceed three months’ salary in the event of non-employment if the employee would not have been hired even if they had been selected without discrimination, § 15 para. 2 sentence 2 AGG – Bonn Labor Court, 5 Ca 1201/19

For discrimination it can be enough if you are not even invited to an interview: The applicant is also – by not being invited to an interview and not being hired – directly discriminated against within the meaning of § 3 para. 1 AGG disadvantaged, because he has been treated less favorably than the person(s) ultimately hired (see BAG May 16, 2019 – 8 AZR 315/18 – para. 15).

Attention:  § 22 AGG provides for a relaxation of the burden of proof, a lowering of the standard of proof and a reversal of the burden of proof for legal protection in cases of discrimination with regard to the causal connection. If, in the event of a dispute, one party provides evidence that suggests discrimination on the basis of a reason stated in § 1 AGG the other party bears the burden of proof that there was no breach of the provisions on protection against discrimination (BAG 25. October 2018 – 8 AZR 501/14 – para. 51). According to this, a person who considers themselves to be aggrieved by a violation of the principle of equal treatment already satisfies their burden of proof if they present evidence that suggests with a high degree of probability that they have been discriminated against on one of the grounds specified in § 1 AGG . All circumstances of the legal dispute must be taken into account in an overall assessment of the facts (BAG May 16, 2019 – 8 AZR 315/18 – para. 15). Even a failure to respond to an application can be such an indication!

How did the court rule

The Heilbronn Labor Court ruled in favor of the plaintiff and ordered the company to pay compensation of 7,500 euros. The court considered the use of the term “digital native” to be an indication of direct discrimination on the grounds of age. It was argued that this term has a generational connotation and therefore excludes older applicants.

Implications for companies and job advertisements in germany

This ruling has important implications for the design of job advertisements. Companies must pay careful attention to the wording of job advertisements in order to avoid any kind of discrimination. Terms that directly or indirectly target age could be considered discriminatory and lead to legal consequences. It is advisable to make job advertisements neutral and inclusive in order to appeal to applicants of all age groups and minimize the risk of discrimination. The example in question here makes it clear that even commonly used terms without a direct reference to age can lead to assumed discrimination.

German Lawyer at Law Firm Ferner Alsdorf
I am a specialist lawyer for criminal law + specialist lawyer for IT law and dedicate myself professionally entirely to criminal defence and IT law, especially software law. Before becoming a lawyer, I was a software developer. I am an author in a renowned commentary on the German Code of Criminal Procedure (StPO) as well as in professional journals.

Our law firm specialises in criminal defence, white-collar crime and IT law / technology law. Note our activity in digital evidence in IT security and software law.
German Lawyer Jens Ferner (Criminal Defense & IT-Law)