Discrimination on the grounds of gender in a job application. BAG 18.09.2014 - 8 AZR 753/13

In spring 2012, the defendant, operator of a local radio station, advertised a position for a full-time accountant with a degree in business administration. The plaintiff applied for this position in April 2012. In her attached CV, she listed her qualifications (administrative specialist and office administrator). She also stated her marital status as part of her personal circumstances: married, one child. The plaintiff received a rejection at the beginning of May 2012. The resume returned to her contained the handwritten insertion .7 years old!. in the context of marital status, and the plaintiff's statement .one child. was also underlined.

The plaintiff considers herself disadvantaged as the mother of a school-age child who is seeking full-time employment. The defendant's note on her CV indicated that the defendant considered the combination of full-time work and caring for a seven-year-old child to be incompatible or difficult to reconcile. The defendant refused to pay compensation on the grounds of gender discrimination. The employee hired instead of the plaintiff was a young married woman who had higher qualifications than the plaintiff.

The Hamm Regional Labor Court ordered the defendant to pay compensation to the plaintiff in the amount of EUR 3,000 due to indirect discrimination. The defendant's appeal against this ruling to the Federal Labor Court was successful. The statistics (microcensus) for the proportion of wives with children in the total number of full-time employees, which the Court of Appeal had used, did not allow any conclusions to be drawn about the plaintiff's case. The BAG emphasizes that the Regional Labour Court, as the court of fact, will have to examine whether the defendant's conduct does not constitute direct discrimination against the plaintiff as a woman. The note on the resume that was returned must be interpreted in this context.