Cologne Labour Court, 10.02.2016; Ref.: 9 Ca 4843/15
If an employer's job advertisement violates a prohibition of discrimination, the employer is obliged to compensate the resulting financial loss in accordance with Section 15 (1) AGG if it is responsible for the breach of duty.
Employers should be aware that they are also liable for constitutional representatives (e.g. managing directors of a limited liability company) under Section 31 of the German Civil Code (BGB) and under Section 278 BGB also for employees of the HR department.
In the Cologne Labour Court case discussed here, the court had to decide whether a car dealership's job advertisement, which was clearly directed exclusively at female applicants, constituted a violation of the prohibition of discrimination.
1. Case Background
A car dealership in Cologne was explicitly looking for a female salesperson to strengthen its sales team. The job advert used the slogan "Women to power!!!". The reason for this was the demand for certain car models, which were predominantly favoured by women, and the fact that female customers had explicitly asked for female sales assistants in the past.
2. Reaction of an applicant
In addition to numerous female applicants, some men also applied. One of the male applicants felt discriminated against by the job advert as it only addressed women. He therefore demanded compensation in accordance with Section 15 AGG (General Equal Treatment Act) as he felt discriminated against.
3. Action before the Cologne Labour Court
After the car dealership did not respond to the claim out of court, the applicant brought an action before the Cologne Labour Court. He argued that the job advert violated the AGG's ban on discrimination as it was only aimed at women.
4. Decision of the Cologne Labour Court
The Cologne Labour Court partially agreed with the plaintiff and found that the advertisement could indeed constitute discrimination, as it only addressed female applicants. However, the court considered the unequal treatment to be justified in this case. The car dealership was pursuing the legitimate goal of offering its customers salespeople of both genders, which justified favouring a female salesperson in this particular situation.
Source: Employment Court Cologne
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