News on the AGG: "Digital Native" is age discriminatory

LAG Baden-Württemberg (judgment of 07.11.2024 - 177 Sa 2/24)

Job advertisements that contain discriminatory characteristics can be expensive for employers. Under the General Equal Treatment Act (AGG), applicants can claim financial compensation if they have been rejected for discriminatory reasons. If the wording of a job advertisement is - even indirectly - discriminatory, there is a presumption in favor of unsuccessful applicants that the rejection was discriminatory. As a rule, this presumption cannot be rebutted by the employer.

The Baden-Württemberg Higher Labor Court has now ruled that the phrase "digital native" also constitutes age discrimination.

Facts of the case

The defendant, a sporting goods retailer, was looking for a "Manager Corporate Communications". The job advertisement stated in part

"As a digital native, you feel at home in the world of social media, data-driven PR, moving images and all common programs for DTP, CMS, design and editorial work."

The plaintiff, a business law graduate born in 1972, applied unsuccessfully for this position.

The plaintiff suspected age discrimination and asserted claims for compensation under the AGG in court. He argued that the term "digital native" was aimed at a specific generation who had grown up with computers and the internet. This included people born after 1980 and the defendant had therefore used the term to refer directly to age. The plaintiff demanded compensation in the amount of 37,500 euros, which corresponded to five months' salary

The defendant argued against this as follows:

The job advertisement was not aimed at a specific age group. The wording of the advertisement was merely intended to have a casual effect. The term "digital native" was not meant in the sense of the scientific definition, but rather had the purpose of describing the qualifications sought. Regardless of age, the intention was to appeal to applicants who felt at home in the digital world

There were also objective reasons for the rejection of the plaintiff's application. The plaintiff was overqualified and his salary expectations were far above the budget. In addition, the application lacked a connection to sport. Overall, the seriousness of the application was doubtful.

Decision

The Heilbronn Labor Court ruled in favor of the plaintiff in the first instance, but reduced the compensation to 7,500 euros.

The LAG Baden-Württemberg confirmed this decision. The court found that the wording "digital native" in the job advertisement was an indication of direct discrimination on the grounds of age in accordance with Section 3 (6) 1 AGG.

The court essentially based its decision on the scientific definition of the term "digital native": the term "digital native", as opposed to the term "digital immigrant", would refer to people who have grown up with digital technologies. In any case, people born before 1980 are not "digital natives".

The employer was unable to rebut the presumption of discrimination, as the plaintiff indisputably fulfilled all the requirements of the job advertisement. Other reasons for the rejection of his application had not been sufficiently explained and proven. The objection of abuse of rights by the plaintiff was also rejected, as there was insufficient evidence to suggest an abusive application.

Practical note

The decision of the LAG Baden-Württemberg provides employers with some important information:

The most obvious statement of this ruling is that the term "digital native" must now be added to the already long list of "no-gos" for job advertisements.

The decision also underlines once again that the courts are very strict when it comes to assessing potentially discriminatory formulations.

The hurdles for employers to exonerate themselves in the event of a discriminatory job advertisement are very high. In any case, without appropriate processes for managing applications, it is almost impossible to prove that applicants were rejected for other, objective reasons. It is also only possible to prove that an application was an abuse of rights in exceptional cases.

This makes it all the more important that employers continue to review their job advertisements continuously and critically. Caution is required, especially in areas where employees are sought for creative, modern and digitalized areas of work. Paraphrasing the qualifications and personal characteristics sought is particularly risky. Employers should always ensure that wording is chosen that describes professional qualifications and not personal characteristics.