Looking for a "Digital Native" in a Job Ad is Discriminatory!

The regional labor court (Landesarbeitsgericht) ("LAG") Baden-Württemberg decided that an applicant can claim compensation for discrimination based on a job ad that said the employer was looking for a "digital native" (17 Sa 2/24).

What Happened?

Back in April 2023, a global retail company in the sports goods industry posted a job opening for a manager of corporate communication. The ad said: "Additionally, you see yourself as an organizational talent who confidently leads projects – even during times of change. 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."

A business law graduate born in 1972 applied for the job and was rejected. He then filed a complaint with the labor court, saying that he was discriminated against because of his age when applying.

Term "Digital Native" is Age Discrimination

The LAG agreed with the lower court that the language used in the job ad was a clear sign of age discrimination under the General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz – AGG). The court said that, in everyday speech, a "digital native" is someone who grew up with digital technologies and is good at using them or someone from the generation that grew up in the digital era. The reasons for the ruling also cite Duden and Wikipedia with the same meaning.

So, the court concluded, the term implied a generational bias. It sounds like the company is looking for someone who is a "native" when it comes to digital communication, someone who has got that skill set just naturally. Instead of clarifying the required expertise, the language effectively narrowed the applicant pool to those who naturally had these traits due because of how they were raised in a digital environment.

The court did not specify exactly how old you have to be to be a "digital native." When researching the term, the year 1981 comes up a lot. Either way, the applicant born in 1972 was not a digital native and was discriminated against by the job ad because of his age.

Additional Wording and Target Audience

The job ad's age implication was made even clearer by words like "team buddy" and the description of a "dynamic team". According to the court, these words are aimed more at younger applicants. While the exact age range for "digital natives" was not determined, it was clear that those born before 1980, including the plaintiff, were not the target group. The court said that it focused on the way the term was understood by the specific target group of applicants mentioned in the ad, instead of the general public.

This approach lines up with earlier decisions by the German Federal Labor Court (Bundesarbeitsgericht), which put the perspective of an average applicant ahead of that of the general public or an average reader of job ads. The court identified the target group in this case as university graduates with exceptional proficiency in English.

What is Fair Compensation?

The court decided that, since the details of the case were specific, a fair compensation would be 1.5 times the gross monthly salary of EUR 5,000 for the advertised role, which equals a total of EUR 7,500. The court agreed with the lower court's decision that 1.5 is a fair amount to compensate the applicant for the illegal age discrimination and the non-material damage suffered as a result. The applicant had originally sued for five gross monthly salaries.

When figuring out how much compensation is appropriate, it is important to look at the specific details of the case. This includes the nature and intensity of the discrimination, how long it lasted and its impact. The court also considered that the term "digital native" was not in the headline but was in the body of the text. If a job ad features a reference like that, it is more likely that people who do not meet the criteria will decide not to apply. In cases of non-employment, compensation is determined based on the gross monthly salary that the unsuccessful applicant would have earned, or approximately earned, had they been offered the advertised position. This comes from statutory law, which stipulates that compensation for non-recruitment cannot exceed three months' salary if the employee would not have been hired even in a discrimination-free selection process.

Burden of Proof

The financial risks of these ads are so high because, to make a similar claim in court, applicants only have to show evidence that indicates discrimination under the AGG. If, based on that, there is a presumption of discrimination, then it is up to the employer to show and prove that the AGG has not been violated. The employer must show that the rejection was based on non-discriminatory reasons.

In this case, the company was not able to do that. The sporting goods retailer is not giving up though and has lodged an appeal.

To-Dos for Employers

Employers need to carefully draft their job ads, as discrimination claims can pop up even before the employment relationship has begun. Sometimes, small changes can make a big difference. For example, the court said that if the company had used the wording "like a digital native" instead of "as a digital native," the decision might have been different.

An easy mistake to make, and something that people often overlook, is ensuring inclusivity in job ads. Job ads should specify that the position is open to all genders by including "m/w/d" (männlich/weiblich/divers), meaning "male/female/diverse."

It would be smart to set up non-discrimination rules before starting hiring. This approach helps to show that the rejection of an applicant was based on other, non-discriminatory reasons. Also, having an official procedure in place makes sure that all candidates are evaluated fairly and consistently, which helps prevent potential discrimination claims.

It is a good idea to keep track of why you are rejecting candidates during the hiring process. It is not usually seen as discriminatory to show that someone does not have the right qualifications for the job. So, it is smart to keep good records of why an applicant was rejected, just in case things go to court.