Federal Labour Court, 23.08.2012, Ref.: 8 AZR 285/11
With the General Equal Treatment Act ("AGG"), 4 European directives against discrimination were implemented in Germany.
These guidelines are as follows:
- Directive 2000/43/EC of 29 June 2000 (Anti-Racism Directive)
- Directive 200/78/EC of 27 November 2000 (Employment Framework Directive)
- Directive 2002/73/EC of 23 September 2002 (Gender guideline)
- Directive 2004/113/EC of 13 December 2004 (Unisex Directive)
The recitals to these EU directives state: "Equality before the law and the protection of all persons against discrimination is a universal human right."
The German implementation of these directives in the form of the General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz, AGG) aims to prevent discrimination on the basis of personal characteristics such as race, ethnic origin, gender, religion, ideology, disability, age or sexual origin.
Sections 6-18 AGG standardise the protection of employees against discrimination. This labour law section of the AGG applies to employees and trainees, but also to job applicants.
According to § 7 (1) AGG, such employees may not be discriminated against on the basis of a reason specified in § 1 AGG; this also applies if the person who commits the discrimination only assumes the existence of a reason specified in § 1 AGG at the time of the discrimination.
The above-mentioned judgement of the Federal Labour Court had to deal with the question of whether a job advertisement which expressly referred to applicants aged between 25 and 35 constituted discrimination within the meaning of §§ 7 para. 1 in conjunction with 1 AGG. V. m. 1 AGG.
Facts of the Case In June 2009, the defendant advertised for two employees aged between 25 and 35. The 56-year-old plaintiff applied for the position but was not invited to an interview.
Although interviews had been conducted, the defendant did not hire another applicant. The plaintiff therefore claimed that he had been unlawfully discriminated against due to his age and demanded compensation from the defendant in accordance with the AGG. The lower courts dismissed his claim.
The plaintiff appealed against this decision to the Federal Labour Court.
Federal Labour Court: The Federal Labour Court ruled in favour of the plaintiff to the extent that the Regional Labour Court should not have dismissed the claim for compensation solely on the grounds that the defendant had not violated the prohibition of discrimination under Section 7 (1) AGG solely because it had not hired another applicant.
Rather, the Regional Labour Court should also have examined whether the plaintiff was objectively suitable for the advertised position and whether he was not hired because of his age.
The case was therefore referred back to the Regional Labour Court for a new hearing and decision.
Source: Federal Labor Court
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