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News: General Equal Treatment Act (AGG) & Labour Law – Compensation for damages in case of discriminatory job advertisement on eBay-Kleinanzeigen (classifieds)

written and translated by Ali Tahir Sen


An advertisement on the internet platform eBay-Kleinanzeigen for applications as a “female secretary” (“Sekretärin”) obliges the advertiser to pay damages under § 15 II AGG due to a discriminatory job advertisement even if the application is made via the chat function.


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In April 2021, the brother of the management of a family-run small business (less than 10 employees), which maintains a workshop and sells used vehicles, published an advertisement on the internet portal eBay-Kleinanzeigen with the following content:

Female secretary wanted!
We are looking for a female secretary with immediate start.
Full-time / Part-time
It would be great if you have experience.
Location: …

Via the chat function of the internet portal, a conversation took place between the later plaintiff, a trained industrial clerk who was also studying business law by correspondence, which is reproduced in abbreviated form below:

Hello, I just found your job posting on Ebay-Kleinanzeigen, with which you are looking for a secretary. I am currently looking for a new home in the area and am interested in your position. I have work experience in an office and know Word and Excel and the law well. I can also write delivery notes and invoices and other typical secretarial work that you require.
I hereby apply for your position.
Are you only looking for a female secretary, i.e. a woman? You stated this in your job advertisement. I have completed a commercial apprenticeship as an industrial clerk.
I would be very pleased to receive feedback.
I would be available immediately.
With kind regards
K
26.04.2021 14:44
I would be very pleased to receive a short feedback.
27.04.2021 21:04
Dear Sir or Madam,
who are you and why.
Many thanks
With kind regards
B
27.04.2021 21:05
Hello my name is K and I am looking for a new professional challenge. I would be interested in your advertised position. Are you looking for a woman only? You stated so in your job description.
27:04.2021 21:08
Dear Mr K,
Thank you for your interest in our company.
We are looking for a lady to be our secretary.
We wish you all the best
Many thanks
With kind regards
B
27.04.2021 21:39

On April 30, 2021, K complained to B by telephone about the discrimination and was rejected with reference to sex, so that he turned to B again in a letter of May 27, 2021 with a pre-formulated settlement proposal (compensation sum of € 3,500.00). This letter contained an error in the form of an incorrect “old” date. No agreement was reached, instead K was invited to a “subsequent” job interview, which he declined. On June 11, 2021, K brought an action at the Elmshorn Labour Court.

The Elmshorn Labour Court dismissed the claim for compensation for discrimination of € 7,800.00 as unfounded in its judgement of December 16, 2021. In his appeal before the Schleswig-Holstein Regional Labour Court (LAG Schleswig-Holstein, Judgment of June 21, 2022 – 2 SA 21/22), K complained that the Elmshorn Labour Court denied the personal scope of application because K was not an applicant within the meaning of the provision and requested that the judgment of the Elmshorn Labour Court be amended and that B be ordered to pay € 7,800 plus interest.

A claim for compensation due to discrimination based on § 15 II AGG can be examined according to the following scheme:

  1. Personal (§ 6 AGG) and material scope of application (§ 2 AGG)
  2. Violation of the prohibition of discrimination (§ 7 I AGG)
    1. Ground for discrimination (§§ 1, 4 AGG)
    2. Discrimination
      1. Direct violation (§ 3 I AGG)
      2. Indirect violation (§ 3 II AGG)
      3. Harassment (§ 3 III AGG)
      4. Sexual harassment (§ 3 IV AGG)
      5. Instruction to discriminate (§ 3 V AGG)
    3. No justification by objective reason
      1. Occupational requirements (§ 8 AGG)
      2. Religion/belief (§ 9 AGG)
      3. Age (§ 10 AGG)
      4. Positive compensatory measures (§ 5 AGG)
    4. Burden of proof (§ 22 AGG)
  3. Objection of abuse of rights (§ 242 BGB)

The Schleswig-Holstein Regional Labour Court first establishes that B is an “employer” within the meaning of § 6 II AGG and must accept responsibility for the conduct (preparation of the advertisement) of the managing director’s brother, who is inexperienced in this regard, as a vicarious agent according to § 278 BGB. Furthermore, the Schleswig-Holstein Regional Labour Court states that K is an applicant according to § 6 I 2 AGG and states:

The Chamber does not share the opinion of the Labour Court that the plaintiff had not applied within the meaning of the personal scope of application of the AGG, as he had not provided a minimum amount of information regarding his person and qualifications which would have made an application procedure possible and it had merely been a matter of making contact. The law does not require a minimum amount of information on the person of the applicant. The person of the applicant must be identifiable. This was the case. The plaintiff stated his name […] and his qualification as an industrial clerk. He expressed his interest in the position by asking for feedback several times. He expressly stated that he would apply. The defendant itself decided to advertise on the internet portal Ebay-Kleinanzeigen. She had to expect that applications would be made via the reply button of Ebay Classifieds. This is the usual way of contacting and applying if the way of a digital advertisement is chosen.

LAG Schleswig-Holstein, Judgement of Junge 21, 2022 – 2 SA 21/22 at 1.b.

The Schleswig-Holstein Regional Labour Court unproblematically affirmed that K was directly discriminated because of his male gender (§ 1 AGG, § 3 I 1 AGG) and continued with whether the claim for compensation was precluded by the objection of abuse of rights according to § 242 BGB raised by B. This could be based on the fact that K

  1. asked several times whether only a woman was wanted as a secretary and thus provoked a rejection.
  2. made a pre-litigation, legally formulated and erroneous settlement offer and thereby systematically and purposefully wanted to put pressure on B and induce him to fulfil the claims.
  3. is overqualified for the advertised position.
  4. has not accepted the invitation to an interview.

However, the Schleswig-Holstein Regional Labour Court first addresses whether the objection of abuse of rights under § 242 BGB raises concerns under European Union law. It states that this is a recognised principle of European Union law and that, according to the established case law of the European Court of Justice, a fraudulent or abusive invocation of European Union law is not permitted, and that there are comparably strict requirements between the prohibition of abuse of rights under European Union law and the German objection of abuse of rights according to § 242 BGB. As a result, the Schleswig-Holstein Regional Labour Court negates Union law concerns and states:

Thus, a person also acts in abuse of rights who, with his application, does not want to obtain the job in question, but only the formal position of an applicant within the meaning of § 6 I 2 AGG, with the sole aim of asserting claims for compensation or damages under § 15 I AGG and II AGG […].

LAG Schleswig-Holstein, Judgement of Junge 21, 2022 – 2 SA 21/22 at 1.d.cc.(4).

The determination of such abusive conduct requires the existence of an objective and subjective element. With regard to the objection that (a) K had repeatedly asked whether only a woman was wanted and thereby provoked a rejection, the Schleswig-Holstein Regional Labour Court stated:

The plaintiff did ask several times whether the defendant was really only looking for a woman as a secretary. This question could be understood as a deliberate challenge […]. However, there is also the possibility that this behaviour of the plaintiff has another explanation. For example, the plaintiff has stated that he was looking for work at the time and intended to move to the area of H. in order to move in with his girlfriend. The defendant has qualified this assertion as a protective assertion, but has not presented any facts to support this assertion.
Furthermore, he has explained that by asking whether only a woman was wanted, he wanted to give the respondent the opportunity to clear up any misunderstanding in the job advertisement. Especially in view of the fact that the plaintiff studied business law and is also active in the field of labour law, the explanation for his enquiry may also lie in the fact that he was simply surprised about the clearly discriminatory job advertisement.

LAG Schleswig-Holstein, Judgement of Junge 21, 2022 – 2 SA 21/22 at 1.e.aa.

With regard to the objection of a systematic and targeted approach through the use of the pre-formulated settlement offer in order to put B under pressure and to induce it to fulfil the demand, the Schleswig-Holstein Regional Labour Court states that

  • an abuse of rights cannot be inferred from the submission of a pre-judicial, legally formulated settlement offer, as this may be due to the fact that the plaintiff applies the knowledge acquired during his studies in his private life and “He still […] attempted to reach a pre-judicial amicable settlement before suing the defendant”. [at 1.e.bb]
  • abuse of rights cannot be inferred from the conduct of several compensation proceedings alone, as such conduct can be explained by a serious interest in retaining the position and exercising one’s rights.
  • it is not possible to conclude that there is an abuse of rights merely from applying frequently to obviously discriminatory job advertisements, since with every lawsuit the applicant or plaintiff runs the risk of losing the lawsuit, not receiving the compensation and bearing the costs of the lawsuit.

The Schleswig-Holstein Regional Labour Court denies that K is overqualified and assumes that his reference to his studies and commercial training is an “advertising measure”. The Regional Labour Court of Schleswig-Holstein also does not conclude from the fact that K did not participate in the subsequent job interview that the plaintiff acted in abuse of rights. First of all, it states:

The decisive point in time for assessing whether someone did not apply to obtain the advertised position, but rather whether he or she was only concerned with obtaining the formal status of applicant within the meaning of § 6 I 2 AGG […] is generally the time of application. Thus, in the context of the examination of whether a claim for compensation and damages is subject to the assertive objection of abuse of rights, as a rule only circumstances from the time up to the rejection can be taken into account and therefore regularly not those that lie after that time.

LAG Schleswig-Holstein, Judgement of Junge 21, 2022 – 2 SA 21/22 at 1.e.dd

With regard to the concrete case, it states:

In the present case, it must be added that the defendant had only invited the plaintiff to an interview after he had been rejected and the plaintiff had asserted claims under the AGG. Against this background, it cannot be ruled out that the defendant’s invitation to an interview – as the plaintiff claims – served to avert claims under the AGG. Moreover, it has the effect that the subsequent invitation often does not de facto open up the same “chance” of employment to an applicant who was initially rejected as an original invitation and that in particular it cannot be expected in every case that the applicant will go into a ” subsequent” interview without prejudice or that the potential employer will be able to ignore it if the applicant has already defended himself against the rejection.

LAG Schleswig-Holstein, Judgement of Junge 21, 2022 – 2 SA 21/22 at 1.e.dd

As a result, the appeal was successful and the Schleswig-Holstein Regional Labour Court ordered B to pay compensation amounting to 3.0 months’ salary for a total of €7,800. The appeal is not admitted.


written and translated by Ali Tahir Sen


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