Protection against discrimination with sham applications?

BAG dated 18.6.2015 – 8 AZR 848/13 (A) – submissionto the ECJ

The Federal Labor Court has requested the European Court of Justice to make a preliminary ruling on the question of whether a sham applicant (a so-called “AGG Hopper” (person abusing the General Equality of Treatment Act)) enjoys protection against discrimination, if the intention of his/her application is clearly not appointment and employment, but merely to achieve the status of an applicant in order to be able to assert claims for damages.

The defendant, a member of a large insurance group, advertised a “Trainee Program 2009”, stating as requirements criterion a very good university qualification, obtained not more than one year previously or to be obtained during the coming months, as well as qualified, vocation-oriented practical experience, for example through training, internship or as working student. An employment law bias or medical knowledge was also preferred for applicants in the subject area law. The plaintiff, who had passed the First State Law Examination in 1999 with the grade “satisfactory” and then the Second State Law Examination in 2001 with the grade “adequate” and had since worked predominantly as a self-employed lawyer, stated in his application that he had leadership experience as a former senior executive in a legal expenses insurance company. He was currently attending a course as Specialist Lawyer for Employment Law and, following the death of his father, was also handling an extensive medical-law assignment which had also given him a broader horizon of experience in medical law. As a former senior executive, he was also accustomed to working independently and assuming responsibility. The defendant finally rejected the application. Following this, the plaintiff asserted damages for 14,000 euros based on age discrimination. The plaintiff turned down the defendant’s subsequent invitation to an interview with its HR Manager, and instead suggested prompt talks concerning his future with the defendant following fulfilment of the compensation claim.

A claim to compensation presupposes that the candidate applies with the aim of being employed

The Labor Court Wiesbaden dismissed the legal action. The plaintiff’s subsequent appeal was also unsuccessful. In its statement of the grounds for the decision, the Federal Labor Court is of the opinion that the plaintiff had not applied to the defendant with the aim of being employed as trainee. Even the formulation of the letter of application and the notifications of the plaintiff contained therein were not consistent with a desire to be employed as trainee. This was also supported by the fact that the plaintiff had turned down the invitation to an interview. For this reason, the plaintiff cannot be regarded as “applicant” or “employee” as defined in Section 6 Subsection 1 Sentence 2 AGG, and consequently cannot invoke Section 15 AGG. Nevertheless, the Federal Labor Court also draws attention to the fact that the law of the European Union does not name the word “applicant” in the relevant Directives, but rather protects “access to employment or to dependent and self-employed gainful occupation”. However, it remains unclarified whether the Directive law presupposes that access to employment is really being sought and appointment actually desired. This is a matter of interpretation.

Is the availability of a formal application sufficient to trigger the protection against discrimination under EU law?

The Federal Labor Court has therefore asked the European Court of Justice the question of whether the existence of a formal application is sufficient to trigger the protection under EU law. In the event of the European Court of Justice answering this question in the affirmative, the Federal Labor Court wishes to know whether the lack of subjective seriousness of the application is to be regarded as an abuse of law, or still falls under “exercise of rights” within the meaning of the provisions of EU law.

Summary

The European Court of Justice will now have to decide whether applicants, whose application or other conduct indicate that they are not seriously interested in recruitment and employment but rather only wish to create the prerequisites for legal action for damages, enjoy the protection of relevant EU law and thus of the General Equality of Treatment Act. If the European Court of Justice answers this question in the affirmative, exclusively the availability of a formal application will be sufficient in future for the assertion of compensation claims, irrespective of how seriously this application is meant. This would greatly facilitate the systematic filing of legal action by so-called “AGG Hoppers”. For employers, this means that utmost care is called for during the entire application process – not only when formulating job advertisements but even if applicants are very obviously not interested in the position advertised -, so as to avoid the impression of any discrimination.