In its judgement of 7 November 2024, the Baden-Württemberg State Labour Court (case no. 17 Sa 2/24) ruled that designations in a job advertisement such as “digital native”, “team buddy” or “dynamic” can constitute age discrimination.
Background
In April 2023, a retail company advertised a position on numerous internet platforms, in which the job advertisement under the heading “WE LOVE” stated, among other things, the following:
“As a digital native, you feel at home in the world of social media, data-driven PR, moving images and all common programmes for DTP, CMS, design and editorial work. You are an absolute team buddy…”
Under the heading “WE OFFER”, the retail company wrote:
“Challenge yourself with interesting and challenging tasks in a dynamic team with attractive remuneration and opportunities for professional development.”
A business law graduate born in 1972 applied for this position. After the company turned him down, the applicant made an unsuccessful claim for compensation in the amount of €37,500, which corresponds to five months’ salary.
He then brought an action before the Heilbronn Labour Court for payment of compensation in this amount. The plaintiff is of the opinion that the rejection of his application was based on discrimination due to his age. The defendant had violated Section 11 AGG with the requirements profile of its job advertisement, which was looking for “digital natives”. The term “digital native” refers to the generation that has grown up in the digital world, i.e. with computers and the internet, since childhood. This includes the age group born from 1980 onwards and therefore does not include him. By using the term “digital native” in the job advertisement, the defendant had directly focussed on the characteristic “age” and thus discriminated against him.
The defendant requested that the action be dismissed, as the plaintiff had already failed to provide sufficient evidence of direct discrimination within the meaning of Section 3 (1) AGG. In addition, the plaintiff was overqualified for the advertised position as a clerk. The age of the plaintiff did not play a role, especially since the term “digital native” is not strictly defined scientifically. The job advertisement only expressed which characteristics were sought and not that the defendant was looking for a “digital native” per se.
The Heilbronn Labour Court partially upheld the claim and ordered the defendant to pay compensation in the amount of €7,500 plus interest.
The defendant then lodged an appeal with the Baden-Württemberg Higher Labour Court.
The decision of the LAG
The LAG Baden-Württemberg followed the opinion of the Heilbronn Labour Court and largely dismissed the defendant’s appeal: The plaintiff was entitled to compensation pursuant to § 15 para. 2 AGG because he was directly disadvantaged due to his age and thus due to a reason pursuant to § 1 AGG pursuant to §§ 7 para. 1, 11 AGG.
The LAG assumes that the plaintiff has presented sufficient evidence to suggest that he was unlawfully discriminated against due to his age. The starting point for this is the job advertisement: In the opinion of the appeal chamber, the criterion “digital native” is directly linked to the applicant’s age. This term was originally coined by Marc Prensky in 2001 to describe the generation of people who have grown up with digital technologies and to contrast them with the generation of so-called “digital immigrants” – i.e. those who have not grown up with these technologies. In addition to Mark Prensky, Duden and Wikipedia do not base their definition of the term on special skills, but primarily on the fact that “digital natives” are familiar with the digital world from an early age because they were born into it. A generational reference to the term can therefore not be denied. The plaintiff, who was born in 1972, was therefore not a “digital native”.
In addition, the term “team buddy” in the advert also suggests that the job advertisement is aimed at younger applicants. The term “dynamic” is also a characteristic that is attributed to younger rather than older people. From the point of view of an objective reader of the job profile, whose understanding is decisive, the address and the adjectives used would be aimed at younger rather than older applicants.
The defendant’s efforts to rebut the presumption of direct discrimination against the plaintiff due to his age pursuant to Section 22 AGG were unsuccessful.
In agreement with the Labour Court, the Chamber considered compensation in the amount of € 7,500 plus interest to be appropriate, taking into account all the circumstances of the individual case.
Practical note
When conducting an application process, the procedure and the selection criteria should always be recorded. Complete documentation is suitable for rebutting the presumption that an applicant was discriminated against on grounds pursuant to Section 1 AGG.
Careful wording of job adverts is crucial for a legally compliant and fair selection process. Terms such as “digital native”, “team buddy” or “dynamic” appear modern and appealing at first glance, but can unconsciously utilise stereotypical age images and therefore constitute discrimination. When creating job profiles, employers should therefore make sure to use neutral wording that refers to professional skills and objective requirements.
Ideally, every advert should be checked for compliance with the AGG before it is published – including legally if in doubt.