Thorsten Lammers, Firm: Kliemt.HR Lawyers
A German job advertisement that used the gender neutral ‘gender star’ did not discriminate against polygender individuals, according to a new ruling.
The use of gender-neutral language is increasingly widespread. Heated debates in the media and social networks have increased the sensitivity for the linguistic equal treatment of all genders in many places. But what does this mean for employers with regard to the legal prohibition of discrimination?
A landmark decision has now been made by the Schleswig-Holstein Labour Court, which has ruled that the use of a star (see here) to indicate both genders are covered in a job advertisement does not discriminate against polygender individuals.
The defendant district had advertised several jobs for qualified social pedagogues, qualified social workers and qualified curative pedagogues. The polygender complainant applied for one of the positions without success. They considered themself discriminated against on the grounds of gender and demanded compensation under s15 (2) of the Equal Treatment Act (AGG). The job advertisement using the gender star was not sufficient for a gender-neutral job advertisement.
The Elmshorn Labour Court had already found against them. The complainant’s application for legal aid for the appeal was unsuccessful before the Regional Labour Court of Schleswig-Holstein.
The court opposed a view, represented also in some legal literature, that the use of the gender star makes the third gender appear as a ‘stopgap’ between man and woman, meaning the gender star is insufficient to make a job advertisement non-discriminatory.
The court took a different view. It emphasised that a job advertisement is formulated in a gender-neutral way if it is addressed to anyone, irrespective of gender. It had to be clear from the overall context of the advertisement that gender discrimination was not intended.
Gender star clearly indicates gender diversity
Based on this, the judges were unable to identify any discrimination requiring compensation. The gender star is precisely intended to be gender-sensitive and non-discriminatory language. Even the Federal Government’s Anti-Discrimination Agency recommends its use. The aim was precisely not to discriminate against anyone, including inter- trans- and multisexual individuals. It said:
‘The star is not only intended to make women and men equally visible in the language, but also to symbolise all other genders and to serve the linguistic equal treatment of all genders.’
Consequently, the complainant, who was born polygender, was not discriminated against either.
As strange as the case decided by the Regional Labour Court may seem, more than ever, employers should make it clear in job advertisements that the advertised positions are aimed at individuals of all genders. The use of the gender star is by no means obligatory and can even lead to disputes, as the case described above shows. In our opinion, employers should therefore use the now-established German suffix ‘(m/f/d)’ instead in job advertisements to avoid disputes.