Pitfalls for Startups in Germany when Drafting Job Ads

A recent decision of the Berlin Regional Labor Court shows again that startups need to be super careful when posting job ads.

Here's what happened:

A Berlin startup wrote in its job ad that it is looking for a "(Junior) Key Account Manager". The company's description referred to "a young team with flat hierarchies". A 50-year-old whose application had been rejected sued for damages for age discrimination.

What did the plaintiff say?

• He argued he did not get the job only because of his higher age, but that age in general is a selection criterion which is discriminatory under the General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz – "AGG").
• He claimed the wording used in the job ad like "young team", "first experience needed", the colloquial form of addressing the reader and the role's title "Junior Key-Account Manager" imply that the startup was only looking for a young person.

What did the court say?

• The Regional Labor Court rejected the claim, arguing in the startup's favor. It referred to the company's date of formation only two years ago which is why the term "young team" was not meant as an expectation to the applicant's age but only referred to the company's young age. A young company can also employ "old" employees.
• The court also said that using the informal form of addressing the reader does not support that the startup is looking for a young person, but that it is rather common to use the informal address nowadays.
• Furthermore, the role's title "Junior Key-Account Manager" only describes the employee's hierarchical level. More senior employees can also be employed as Junior Key-Account-Managers.

Do such complaints occur frequently?

• Yes, we see more and more suits like this. In some cases, the applicants are not looking for a new job, but just trying to make money with such claims. They are actually looking for poorly drafted job ads on the internet.
• The company's risks are often due to some unfortunate wording which companies do not really identify as a problem.

How can you protect your company from such claims?

• Draft your job ads carefully or have it reviewed by an expert. The AGG generally prohibits discrimination for the reasons of ethnic origin, sex, religion or belief, disability, age, sexual identity.
• Avoid any wording that could be interpreted as a discrimination based on the protected characteristics. Be particularly careful when using "young" in your job ad, with phrases such as "job starters wanted" and with references to recently obtained university degrees.
• To avoid allegations of gender discrimination, companies should draft the job ad in a gender-neutral way. Use gender-independent function designation or list all sexes.
• Suggestions of discrimination based on racial or ethnic origin may arise from the required language skills, for example "German as a mother tongue" or "accent-free German".