Germany - New insights: Tips to avoid unlawful discrimination in job advertisements
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Counsel
Germany
As a specialist for employment law in our Hamburg office and a member of the Practice Group for International Employment Law, I advise on all areas of individual and collective employment law, often in a transnational context. Clients appreciate my assessment of the economic background of their issues, which leads to solution-oriented and pragmatic advice.
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Discrimination in the recruitment and selection process of potential candidates is prohibited by law. Broadly speaking, discrimination on grounds of sex, origin, race, disability, religion or belief, sexual orientation or age is not allowed. This emerges from the principle of equality stipulated in Art. 3 of the German Basic Law (Grundgesetz; GG) and the General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz; AGG). The latter was adopted on the basis of a series of European Community Directives focused on equality law (Council Directives 2000/78/EC, 2006/54/EC and 2000/43/EC). It has high practical significance and rules that the employer must conduct a selection process that is free of any discrimination. This extends to the way employers advertise available jobs and employers need to be taking a neutral stance in this regard; firstly, in respect of the wording used and secondly, in respect of the audience targeted.
I. Discrimination by job advertisement itself / introduction of a new third gender
The German Federal Labour Court (Bundesarbeitsgericht, BAG) established the precedent that a job advertisement cannot be addressed specifically to young people (i.e. “We are looking for young and tough colleagues”) as it discriminates against older individuals. This precedent, together with continually developing case law has made it widely known that wording in job advertisements must be neutral in respect of the candidates sought after to avoid discriminatory treatment (s. 11 General Equal Treatment Act) and that employers are not permitted to seek specifically male or female candidates. Following a recent decision of the German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG, judgement dated 10 October 2017 – 1 BvR 2019/16) it is also now advisable for employers to include address to a third gender (“divers” or “inter”) in job advertisements and to make clear that they consider applicants who do not define themselves as falling into the male or female gender.
II. Audience targeting
Audience targeting concerns the location in which employers post job advertisements and considers who can regularly and typically take note of them. Whilst it is a relatively new development in equality law and there is little case law on the matter, employers should be aware that physical placement of job advertisement can also lead to findings of discrimination if they lead to targeting specific audiences (see exemptions below). For example, a restaurant could be held to be behaving discriminatorily if it places a job advert for new waiting staff in the female bathrooms only, even if the wording of the advert itself does not seek to exclusively target women.
Technology has affected audience targeting and advances in social media have allowed employers to address specific content to specific groups. Since the beginning of 2017, in the US and Canada, Facebook allows employers to place job adverts and specify certain characteristics of those they want to see the advert (i.e. age, sex, location). In return, the persons viewing the advertisement can find out why they see such content (“why am I seeing this ad?”). Whilst this feature is not yet live in Germany, employers should remain alert to the fact that whilst technology allows audience targeting, such methods can still be deemed to be discriminatory.
Notwithstanding the above, there are certain exceptions to prohibited audience targeting. Firstly, there are those listed in the general justification reasons in the AGG. For instance, a hospital searching for a midwife is, pursuant to sec. 8 AGG (“permissible difference of treatment on grounds of occupational requirements”), allowed to post a job advert in a women’s only magazine. The same applies for the recruitment of a doctor’s assistant in a gynaecology practice.
Secondly, even if no justification reason exists, employers can still place advertisements in group-specific locations, provided they have also placed advertisements in a wide range of media that collectively, is inclusive of different groups.
Employers can avoid infringement of discrimination laws by providing evidence that they did not differentiate on the basis of the forbidden criteria of sec. 1 AGG. To further prove that they did not intend to differentiate on the basis of the criteria listed in sec. 1 AGG, employers can publish further job advertisements to balance seemingly specific placements. In many cases it will be sufficient to post an additional job advertisement on the firm’s webpage.
As technology continues to advance and more options are available to employers in respect of audience targeting, the chances of being seen to act discriminatorily increase. If using an online platform and able to choose which persons will see a job advertisement, employers should select the widest criteria possible and should not limit the addressees by means of race, sex, origin, disability, religion, belief, sexual orientation or age. It is also suggested that employers keep a thorough record of the published job advertisements and the chosen selection criteria on any online platforms (e.g. screenshots). Whilst this may lead to increased administration in the recruitment process, proof of such steps will be welcomed if faced with a suggestion of discriminatory behaviour.
