Germany’s anti-discrimination law may be on the brink of change following a referral by Germany’s Federal Labor Court to the European Court of Justice (the ECJ). Currently, German discrimination law requires a claimant to produce evidence to show they have suffered a disadvantage by reason of a protected ground before the burden of proof shifts to the employer to demonstrate that there was no unlawful discrimination. A mere assertion that the claimant has the qualifications for the job is not enough.
The case referred to the ECJ concerns a female job applicant born in Russia in 1961, whose job application was rejected. She is seeking damages for unlawful discrimination on the grounds of sex, nationality and age, asserting that she was qualified for the job. The referral relates to whether the requirement under German law for sufficient evidence of discrimination places too heavy a burden on her, and consequently whether the burden of proof needs to be amended so as to comply with EU law.
It is possible that, as a result of the ECJ’s decision, German employers will be required to disclose details about hired candidates which may allow unsuccessful candidates to bring discrimination claims. This would increase the burden on German employers not only to comply with discrimination law, but also to be able to demonstrate that compliance.