Germany: Have Rejected Job Applicants the Right to Know the Reasons for Not Getting the Job?

Recently, the German Federal Labor Court (Bundesarbeitsgericht “BAG”) rendered a decision which had been awaited with interest by German employers (BAG, April 25, 2013 - 8 AZR 287/08) with regard to information rights of rejected job applicants.

The Case

The plaintiff, a female Russian national, was born in 1961. She holds a Russian degree in systems engineering. After having seen a job advertisement, she applied for a job as an experienced software developer but her application was rejected. Soon afterwards, the company again published an advertisement—it was obviously still searching for a candidate eligible for the still vacant position. Plaintiff re-applied for the job but was rejected again. The company had neither invited her for an interview nor provided her with any information why her application had been rejected.

The First Decision of the BAG – Two Questions for the European Court of Justice

As the woman was of the opinion that she fully met the requirements posted in the advertisement(s), she claimed that she had been discriminated by the company on the grounds of her sex, origin and age when her application was rejected. She took legal action and claimed for financial compensation under Article 15 of the German Anti-Discrimination Act (“AGG”). As, under German law, a rejected job candidate is obligated to present facts or at least indications why he/she was discriminated, the woman requested the company at court to provide her with the details of the candidate who was hired in order to put her in the position to substantiate her claim. The company, however, rejected to disclose any information why Plaintiff was not given the job, and also refused to give any details on the successful candidate.

Plaintiff’s claim for compensation and information was rejected by the BAG. The court stated that German law does not provide for an information right of a job applicants information right. However, the BAG could not determine whether EU anti-discrimination laws may entitle a job applicant to get the information requested by the Plaintiff. Therefore, the BAG referred the following two questions to the European Court of Justice:

1. Has European law to be interpreted as meaning that, “where a worker shows that he meets the requirements for a post advertised by an employer, he has a right vis-à-vis that employer, if he does not obtain the post, to information as to whether the employer has engaged another applicant and, if so, as to the criteria on the basis of which that appointment has been made?”
2. If the answer to the first question is affirmative: “where the employer does not disclose the requested information, does that fact give rise to a presumption that the discrimination alleged by the worker exists?”

The Answers of the European Court of Justice

In response to the questions, the European Court of Justice (April 19, 2012 - C‑415/10) decided that EU law, in particular the anti-discrimination Directives, do not grant a job applicant an information right against the company.

The Court, however, pointed out that it cannot be excluded that a defendant’s refusal to grant any access to information may be one of the factors to be taken into account in the context of establishing facts from which it may be presumed that there has been direct or indirect discrimination.

The Final Decision of the BAG

After this decision of the European Court of Justice, it was heavily disputed in Germany whether a company not answering any question of a rejected job applicant (who meets the requirements for a posted job) why he/she has not given the job is a fact or incident speaking for discriminatory behavior. If so, a company refusing to give any information would have the risk to be sued for discriminatory behavior and to pay compensation.

The BAG, however, finally dismissed the claim. The woman has not presented any evidence or hints of discrimination. Given this, the silence of the company at court did not speak in favor of her. Obviously, the BAG still requests from a plaintiff the presentation of facts or incidents that may speak for discriminatory behavior. Only if the plaintiff meets these criteria, the silence of the company as defendant will help the plaintiff to win the case.