Even if a potential Employer does not know that an applicant is unsuitable for the offered job from an objective point of view, compensation claims based on discrimination would not be granted.
The first comprehensive anti-discrimination law, regulated in the General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz – “AGG”), was introduced in Germany in 2006. In the early years of this Act, many so called “AGG-Hoppers” have abused this situation by applying for discriminatory job offers to assert a compensation claim against inexperienced employers as a second step.
Court rulings have made life difficult for a number of these “AGG-Hoppers” by rejecting their compensation claims if the circumstances of the application suggest that the only intention of the application was to provoke a letter of refusal to assert compensation claims afterwards. Only a genuine application could justify a compensation claim. Furthermore, the BAG rendered the decision that compensation claims should not arise if the applicant is objectively inappropriate for the employment position because in this case, the refusal of an applicant is not discriminatory.
The above mentioned situation was the content of another judgment of the BAG on November 14, 2013 (8 AZR 997/12), which could help employers to create a new strategy in legal battles with “AGG-Hoppers.” A lawyer, who was born in 1973 and had already worked for several years as an associate lawyer and an independent lawyer, applied for a trainee program to educate young managers in human resources. According to the job advertisement, the corporation was looking for people with an “outstanding university degree,” which was not older than one year. The lawyer graduated with the result “satisfactory” but did not attach his certificate with his application letter or inform the corporation regarding his marks. He received a letter of refusal and asserted a compensation claim against the corporation and based it on age discrimination.
The BAG rejected the lawyer’s claim because, according to the court, illegal age discrimination assumes that the plaintiff is appropriate for the employment position from an objective point of view. In compliance with the existing jurisdiction, the court rejected the claim because the lawyer was unsuitable for the position due to his mere “satisfactory” results.
Moreover, the BAG remarked in its further statement that it is completely irrelevant if the potential employer knows that the applicant is unsuitable for the position when rejecting the application. Therefore, the lawyer could not argue that the company did not know about his “satisfactory” result when they refused his application. According to the BAG, the aim of the German AGG is only to protect against objective unequal treatment and not to sanction possible discriminatory motivation of the employer.
From the point of view of companies and potential employers, who still are the target of doubtful discrimination complaints, this court ruling is certainly a benchmark. This has made it easier for companies to prove the unsuitability of the plaintiff and to defend themselves against unjustified compensation claims.