No claim for compensation of a severely disabled job applicant

Higher Labor Court Cologne, judgment dated November 10, 2021 - 3 Sa 1187/20

Once the search for applicants has been concluded, a claim for compensation under the German General Equal Treatment Act (“Allgemeines Gleichbehandlungsgesetz” “AGG”) by a severely disabled applicant whose application was received after the search for applicants has been concluded is no longer possible. 

Facts

The following case was before the Cologne Higher Labor Court (LAG) for decision in November 2021:

The defendant (probably a publicly owned company) had advertised a position towards the end of 2019. The position was published in two online portals, among others. These advertisements ran until November 27, 2019 and December 7, 2019, respectively. 

Within a very short time, the defendant received various applications, four of which (including the current job holder) appeared to the defendant to be particularly attractive from a professional point of view. The application process was then declared prematurely closed by the defendant's managing director on November 21, 2019. The particularly attractive applicants were invited to interviews on the same day. 

Such applications received after November 21, 2019, were indiscriminately rejected by the defendant with identical letters. Among the submissions after the closing of the search for applicants was the letter of the severely disabled plaintiff, dated December 2, 2019. 

The plaintiff argues that the defendant should have considered his application. In particular, the defendant could not have assumed that after premature termination of the search for applicants until the expiry of the publication of the online advertisements no more applications would be received. Accordingly, the plaintiff was discriminated on the basis of disability and he was entitled to compensation under the AGG. 

The Cologne Labor Court upheld the action in its judgment of November 5, 2020 (File No. 14 Ca 1497/20) and ordered the defendant to pay the plaintiff compensation of EUR 3,000. 

Decision of the LAG

The LAG amended the judgment of the Cologne Labor Court and dismissed the action. 

The LAG explained that there had been no discrimination on account of the plaintiff's severe disability. 

A claim for compensation pursuant to Sec. 15 (1) and (2) AGG in conjunction with Sec. 7 (1) AGG.  Sec. 7 (1) AGG can only be considered in the event of a violation of a prohibition of discrimination. A disadvantage due to a reason mentioned in Sec. 1 AGG (e.g. ethnic origin, gender, religion or disability) requires a causality between the reason mentioned in Sec. 1 AGG and the disadvantage. 

In principle, violations of the obligation of a public employer to invite severely disabled applicants (Sec. 165 Sen. 3 German Social Code Book IX, “Sozialgesetzbuch IX”, “SGB IX”) are suitable to justify the assumption that there is discrimination due to disability (cf. Sec. 22 AGG). The (potential) employer thereby gives the impression that he is not interested in the employment of severely disabled persons. 

In accordance with the evidence provision in Sec. 22 AGG, the (potential) employer therefore bears the burden of proof for providing counter-evidence that the principle of equal treatment has not been violated. The defendant had provided this counter-evidence.

The defendant had submitted that the search for applicants had already been closed on November 21, 2019, despite the ongoing job advertisements, and that no further applications had been considered. In particular, the witness named and examined by the defendant had presented this conclusively and credibly. Thus, on the basis of the qualitatively appealing applications, the managing director of the defendant had come to the conclusion ahead of time that no further applications were necessary and that the application process could be closed to that extent. Subsequent applications were only to be collected, but no longer forwarded to the management. 

Practice Notes

The decision of the LAG is clearly understandable and to be welcomed. The LAG clarifies that not every rejection of a severely disabled applicant in the application process automatically constitutes discrimination on the grounds of disability. In this respect, the LAG consistently examines and asks for the cause of the rejection decision against the severely disabled applicant. In the case described above, the cause was precisely not the applicant's disability, but the fact that the managing director declared the application process closed due to the qualitatively attractive applications already received. All further submissions after the internal conclusion of the application process were equally rejected. Accordingly, discrimination against the plaintiff on the basis of his disability had to be ruled out. 

It can also make no difference to the assessment whether the potential employer has placed an online advertisement with a service provider that continues after internal closing. The application process is in the hands of the potential employer. Provided he deems the applicant pool sufficient, he must have the option to ignore further submissions. It will be exciting to see whether and how the German Federal Labor Court (“Bundesarbeitsgericht”, “BAG”) positions itself on this issue, provided it accepts the decision for appeal (non-admission appeal (“Nichtzulassungsbeschwerde”) filed under File No. 8 AZN 36/22).

In practice, the participation of severely disabled persons in job application processes involves various stumbling blocks. Also due to the manifold case law on this topic, the requirements are constantly in flux. The BAG has also made decisions in recent years that must be taken into account. The following are examples of such decisions: 

On April 29, 2021, the BAG ruled that severely disabled applicants are not considered to be "obviously unsuitable for the job" within the meaning of Sec. 165 Sen. 4 SGB IX solely on the basis of their failure to achieve a final grade set by the employer, and that the obligation to invite them to an interview is therefore not waived for this reason alone (cf. BAG, ruling dated April 29, 2021 - 8 AZR 279/20). Furthermore, the term "job interview" is to be understood as all instruments of the personnel selection procedure with which the employer forms a picture of the professional and personal suitability - this also applies in multi-stage application processes, so that a severely disabled applicant must not only be invited to a selection interview, but also to a subsequent potential analysis (cf. BAG, judgment of August 27, 2020 - 8 AZR 45/19). Finally, a severely disabled applicant cannot waive the obligation to be invited to an interview pursuant to Sec. 165 SBG IX, as this does not establish an individual right (cf. BAG, judgment dated November 26, 2020 - 8 AZR 59/20). The applicant must therefore also be invited if he/she states that he/she only wishes to be invited if he/she is shortlisted.