Update Employment Law December 2021
No age discrimination through the wording "young team with flat hierarchies"
A "young (start-up) team" may refer to itself as such in the recruitment process without any age discrimination being involved.
LAG Berlin-Brandenburg Judgment of 1.07.2021, 5 Sa 1573/20
If a recently founded start-up company refers to its "young team with flat hierarchies" in its job advertisement, this does not constitute age discrimination, provided that the overall circumstances show that this is merely a description of a workforce that has only existed for a short time.
The parties are in dispute about a violation of the prohibition of discrimination in the context of a job advertisement.
The 48-year-old plaintiff applied to a job advertisement of the defendant (a start-up company newly founded in 2017) for a position advertised as "(Junior) Key-Account Manager (m/f/d)". Under the section "We offer", the defendant stated in its job advertisement that it was "a young team with flat hierarchies", which therefore allowed its applicants "real scope for creativity"
After the plaintiff received a rejection and the position was filled otherwise, he sued for damages in the amount of at least 5,000 euros at the Berlin Labor Court due to a violation of the prohibition of discrimination. From his point of view, the advertisement for the job was at least incidentally discriminatory with regard to age.
The Berlin Labour Court dismissed the claim. The description "young company" described a characteristic of the company, not an expectation regarding the age of the applicants. Also the term "junior" in the context of the description of the position to be filled did not give any indication of a certain age.
The plaintiff's appeal was also unsuccessful.
The Berlin-Brandenburg Regional Labor Court also held that the defendant had not violated the prohibition of discrimination by using the phrase "young team" in its job advertisement.
Rather, the wording was to be understood as a reference to the fact that applicants can expect a company that does not consist of a workforce that has been well rehearsed for a long time. A connection to the cooperation with young people was not linked to this.
The reference to flat hierarchies and a "real scope for action" confirmed that no statement was being made about the individual members of staff, but about the workforce as a whole.
Contrary to the plaintiff's opinion, the fact that a young person was nevertheless being sought despite this obvious understanding could also not be gathered from the overall context of the job advertisement. The continuous use of the second person ("you", "your") was not an indication that young people were being addressed, but was a common way of addressing employees in many large companies today, irrespective of age.
Finally, the use of the word “junior” in the job title does not refer to age but to the position in the hierarchy of the company.
Although the LAG Berlin-Brandenburg did not allow an appeal, the plaintiff filed a complaint of non-admission at the Federal Labor Court.
Even if this procedure has turned out "well" for the employer, terms such as "highly motivated", "young and dynamic" should be avoided wherever possible in job advertisements. Otherwise, the employer risks high compensation payments or, in any case, troublesome legal disputes.
In recent years, the issue of age discrimination in job advertisements has been decided differently by different courts.
For example, in 2012 the LAG Munich still ruled that the use of the phrase "We are a young dynamic team and complement each other to an exciting challenge" in the context of a job advertisement did not contain any discrimination on the grounds of age, as it served the pure purpose of self-promotion (LAG Munich 13.11.2021, 7 Sa 105/12).
In 2020, however, the Regional Labor Court (LAG) Nuremberg then ruled that the formulation "future-oriented, creative cooperation in a young, dynamic team" constituted a violation of the prohibition of discrimination, as this constituted a fact which gave rise to the assumption that the 61-year-old applicant who had not been hired was discriminated against on the grounds of age pursuant to Section 22 of the General Equal Treatment Act (AGG) (LAG Nuremberg 27.05.2020, 2 Sa 1/20).
We therefore recommend to always check the respective job advertisement again before publication to ensure that it is free of discrimination in terms of content with regard to all discrimination elements listed under § 1 AGG (race or ethnic origin, gender-neutral, religion/belief, disability, age and sexual identity).