In order to score points in the race for suitable applicants, employers try to dinstinguish themselves from the competition with the wording of their job advertisements. In doing so, they sometimes resort to colloquial expressions, but this can run the risk of violating the prohibition on discrimination in the German Equal Treatment Act. The Koblenz Labour Court recently ruled on whether a job ad looking for ‘cool guys’ (coole Typen) constituted age or gender discrimination (9 February 2022 – 7Ca 2291/21).
A heating and sanitary installation company (the defendant in this case), published a job advertisement:
‘We are looking for cool guys – plant mechanics – construction assistants …’.
The plaintiff applied for the job and signed the application as ‘Ms Markus’. According to her biological sex, she is a man, but identifies as female. She was not considered further in the application procedure and felt she was discriminated against by the job advertisement because of her age and sexual identity. As a result, she considered she was entitled to compensation under s15(2) of the German Equal Treatment Act, (the AGG).
The Koblenz Labour Court had to decide on two possible approaches to discrimination under the Equal Treatment Act. Firstly, did the job advertisement constitute age discrimination because it was seeking ‘cool’ applicants? In any case, the plaintiff saw it as tending to only target young applicants. And secondly, does the term ‘guys’ result in discrimination on the grounds of gender or sexual identity, because this could only be addressed to male applicants? And if so, can a person who is biologically male be discriminated against at all by a job advertisement seeking male applicants?
The Koblenz Labour Court awarded the plaintiff compensation on the grounds of discrimination on the grounds of sex.
However, the court did not consider there was clear evidence of age discrimination in the search for ‘cool’ employees. The term ‘cool’ had become ‘naturalised’ and was commonly used in general communication. People, behaviour, events or other circumstances can be cool, but the expression does not refer to age.
The obligation to pay compensation, however, arose from discrimination on grounds of sex. The use of the term ‘Typen’ alone did not constitute discrimination because there was no feminine form of the term. However, it was clear from the other circumstances of the case that the defendant was only looking for male applicants, since the subsequent terms in the job advertisement (‘plant mechanic’, ‘construction assistant’) were only given in the masculine form.
The court rightly rejected the defendant’s view that there was no gender discrimination against plaintiff because of her biologically male gender. This is because, in the context of anti-discrimination law, it is not biological sex that matters. The Labour Court referred to the established case law of the Federal Constitutional Court, according to which gender also depends crucially on the psychological constitution of a person and his or her sustained self-perceived gender. As soon as biological and psychological sex diverge, the individual’s right of self-determination must be taken into account and his or her self-perceived gender identity must be legally recognised. This does not require an adjustment of the first name, a change of status with regard to gender or physical gender reassignment.
In this case, the result was that the court found there was discrimination on grounds of gender. In comparable cases, the Federal Labour Court has previously left it open whether there was discrimination on grounds of gender or sexual identity.
If employers are looking for ‘cool guys’ in job advertisements, this would not constitute discrimination on the grounds of age or gender without further evidence. However, if further circumstances reveal that the advertisement is actually addressed to a specific gender, there is a considerable risk of discrimination requiring compensation.
If an applicant self-identifies as being a different gender to his or her biological sex, s/he would also be discriminated against in these circumstances. The decisive factor is perceived gender identity. The judgement of the Koblenz Labour Court should reinforce the need for all employers to pay special attention to gender-neutral formulation of job advertisements: after all, cool guys of any gender should be able to find a job.
For more information about discrimination