Regional Labour Court Schleswig-Holstein 22.06.2021 - 3 Sa 37 öD/21
As in many other countries, the inclusion of women and marginalised population groups is gaining more importance in Germany. In order to comply with this in daily language use, more attention is being paid to gender-neutral wordings. Unlike in English-speaking countries, where there is often no difference between the masculine and feminine form of a word, this kind of wording creates challenges for many in Germany. Usually, a gender-neutral wording is attempted with the so-called "Gendersternchen" (gernder - asterisk). For example, a "Gendersternchen" is placed after the masculine form of a term and the feminine form of the term is listed afterwards. However, besides the desired inclusion, this method of wording can become subject of legal actions as described in the following.
The question of whether the use of the gender asterisk in a job advertisement can constitute discrimination against multi-gender people under the German General Equal Treatment Act (“AGG”) was recently addressed by the Schleswig-Holstein Regional Labour Court.
A local authority had published a job advertisement for one of its offices in September 2019. Several positions for social professions were advertised. According to German language specialities they were provided with a “gender asterisk” to show that those positions are open for every gender ("Diplom-Sozialpädagog*innen", "Diplom-Sozialarbeiter*innen" and "Diplom-Heilpädagog*innen"). The job advertisement contained the addition: "For further details, please refer to the following requirement profile of a specialist (m/f/d)" and further: "Severely disabled applicants will be given preferential consideration if they have the appropriate qualifications".
Shortly thereafter, the severely disabled plaintiff, who was born bi-sexual and has a law degree (Master of Laws), applied for the job and received a rejection.
The plaintiff filed a claim for compensation under the AGG before the Elmshorn Labour Court. The plaintiff stated, that - among other things - a discrimination because of the sex had taken place, since the gender asterisk used in the wording “severely handicapped applicants” (in German: “schwerbehinderte Bewerber*innen”) was - contrary to the defaults of the German Social Security Act IX (Sozialgesetzbuch, “SGB IX”) - not sex-neutral. The SGB IX only knows the term "severely disabled persons" (in German: “schwerbehinderte Person”).
The plaintiff was awarded a compensation in the amount of 2,000 euros pursuant to Section 15 (2) AGG because the representative body for severely disabled persons was not involved in time.
The plaintiff then applied for legal aid and the appointment of a lawyer to conduct the appeal against the judgment of the labour court. The plaintiff expected the compensation to be at least 4,000 euros due to the discriminatory use of the gender asterisk.
The Schleswig-Holstein Regional Labour Court (“LAG”) rejected the plaintiff's claim.
The LAG based its rejection on the lack of sufficient prospects of success of the appeal. It stated, that it was not sufficiently demonstrated that the plaintiff would be entitled to higher compensation than the one already awarded.
Furthermore, the use of the gender asterisk in the job advertisement did not constitute a gender discrimination towards the plaintiff as a bi-sexual person.
The court held that a job advertisement is worded in a gender-neutral manner if it is addressed to all people regardless of gender, i.e. at least the job title is used in a gender-neutral form and its overall context shows that gender discrimination is not intended.
In this respect, the gender asterisk serves precisely to ensure gender-sensitive and non-discriminatory language. It is based on a recommendation of the Anti-Discrimination Agency of the German Federal Government. The aim of its use is to clarify the diversity of the sexes. The asterisk should not only make women and men equally visible in the language, but also symbolise all other genders and serve the linguistic equal treatment of all genders.
The fact that the advertisement should be gender-neutral is already ascertained by the addition of "m/f/d" in the job advertisement.
The use of the term "applicants" (“Bewerber*innen”) instead of "people" (“Personen”) does not have a discriminatory character, since both terms meant the same in the given terms of the advertisement.
The plaintiff had not asserted any further disadvantages. In any case, there was no obligation to invite the plaintiff, since the plaintiff was obviously unsuitable to fill the advertised position, § 165 p. 4 SGB IX.
Principally, care must be taken to ensure that job advertisements are worded in a gender-neutral manner - even if they are only published internally within the company (cf. Sections 11, 7 (1) AGG). Otherwise, gender discrimination is indicated. The employer must then refute this indication, Section 22 AGG. According to the current recommendations (as of July 2021) of the Anti-Discrimination Agency of the German Federal Government, the following variants can generally be used to word gender-neutral advertisements in German language.
Alternative 1: Use of gender-independent generic term ("Activity as a lawyer"; "We are looking for support for our legal department").
Alternative 2: Gender gap or gender asterisk ("Jurist_in” / "Jurist*in”).
Alternative 3: Addition of the parenthesis (lawyer (m/f/d)).
Exceptions to this basic rule are only conceivable in extremely limited cases. For example, if the professional requirements necessitate membership of a certain gender. For example, the German Federal Labour Court (Bundesarbeitsgericht, “BAG”) has decided that the position of municipal equal opportunity officer, who is also responsible for the integration of immigrant Muslim women (cf. BAG, decision dated March 18, 2010, 8 AZR 77/09), must necessarily be filled by a woman. In this respect, there is no discrimination against male applicants. Accordingly, the selection of a female managing director of an all-women's association (see ArbG Munich, decision of February 14, 2001, 38 Ca 8663/00) and a "scientific employee for women's issues" (see ArbG Bonn, decision of September 16, 1987, 4 Ca 1398/87) could also be limited to women without discrimination.
Insofar as an employer violates the requirement of gender-neutral advertising, however, this does not result in a hiring claim for the discriminated person under the AGG, Section 15 (6) AGG. Only claims for damages can be considered.
The argumentation of the LAG is conclusive in view of this and protects the legitimate interests of employers. If the plaintiff's argumentation, that the plaintiff does not feel represented by the gender asterisk, were accepted, the door would be opened to abuse. Job advertisements could no longer be published in a non-discriminatory manner without any risk, if such a subjective characterisation was allowed, since - even if the common and state-recommended designations were observed - gender identities might not be covered. In this respect, a company must be able to rely on state recommendations when publishing job advertisements.
Therefore, the LAG is also to be agreed with when it equates the term "severely disabled person" (“schwerbehinderte Person”) used by the SGB IX with the term "severely disabled applicant" (“schwerbehinderte Bewerber*innen”). Both terms clarify the gender-neutral approach of the job advertisement to the same extent. If a company decides to use the much more common term "applicant" in a job advertisement instead of the impersonal and distant sounding term "person", no discrimination can be recognized in this, as long as a company adheres to the standards for non-discriminatory terms.