Judgment of the District Labour Court of Berlin-Brandenburg of 1 July 2021 in Case No. 5 Sa 1573/20
A job advertisement referring to a “young team” could indicate discrimination against older applicants. However, depending on the wording of the advert, the assessment might be different in the case of a start-up. If you want to avoid becoming a breeding ground for compensation claims, avoid any direct or indirect reference to age – regardless of whether young or old – in job adverts.
Facts of the case
Approximately two years after it was founded, a start-up advertised a job for a position as a “Key Account Manager”. In the ad, the company stated that it offered a “young team with flat hierarchies that give you real freedom”. An applicant, who was born in 1972, received a letter informing them that their application had been unsuccessful. The applicant took this as an opportunity to claim compensation and brought an action before the labour court.
The applicant claimed that the letter of rejection showed unlawful discrimination on the basis of age. The applicant submitted the job advert as an indication of this discrimination. They claimed that the wording “young team” showed that the company was targeting younger applicants. The start-up argued that “young team” didn’t refer to the age of any applicants, but to the relatively short period since the start-up had been established.
The applicant was unsuccessful in his claim for compensation before both the Labour Court and the Regional Labour Court and both Courts dismissed the case. The Courts couldn’t identify any discrimination against the unsuccessful applicant based on age. In particular, the Courts held that the wording “young team”, as described in the job advert in this case, did not constitute any indication of an unlawful disadvantage due to age.
The reference to a “young team” in a job advert can indicate an expectation that the successful applicant should be “young” to fit in well with the team. If this was the case, the Courts probably would have found in favour of the applicant. However, the Courts understood the words “young team” to have a different meaning in this specific case. Since the company introduced itself in the opening few passages as a start-up that had only existed for a few years, the reference to a “young team” should be understood as paraphrasing “a workforce that has only existed for a short period.”
Consequences for practice
Adverts for positions vacant may not violate any of the prohibitions against discrimination on the grounds listed in § 7 (1) of the General Act on Equal Treatment (Allgemeines Gleichbehandlungsgesetz, AGG). This is written in black and white in § 11 of the AGG. Job adverts referring to the age of the desired applicant should be avoided. Employers otherwise risk claims for compensation from unsuccessful applicants.
Job adverts will be considered discriminatory on the basis of age when they make specific age stipulations (e.g., “at least 30 years old” or “Maximum age of applicants: 45 years old”) or provide age brackets (e.g., “18 to 35 years old”). However, even seemingly neutral criteria can constitute discrimination based on age. This can include a reference to a “young team”. In the above case, the company was able to rely on the fact that it was a start-up. In other cases, unsuccessful applicants have won claims for compensation where there was a reference to a “young team” in the job advert.
Regardless of whether your company is a newly established start-up or one that has been active on the market for a while, you should avoid using the word “young” in the job adverts. Start-ups can of course refer to the fact that they were recently established. They can use the year of establishment or the term “start-up” in the job advert, for example. Descriptions that use the adjective “young”, such as “young team” or “young company,” should be avoided as a precaution.