The Regional Labour Court (Landesarbeitsgericht, LAG) of Baden-Württemberg decided on 15 January 2016 (docket no. 19 Sa 27/15) that the requirement of very good English and German language proficiency for employment in a company operating internationally is self-justifying and does not constitute discrimination. The description of the company’s team as being “young and highly motivated” also does not constitute discrimination relating to the age of an applicant,
In the present case, an applicant sued a company to claim compensation and redress due to being discriminated against in the course of recruitment. The claimant applied for employment as a software developer in April 2014. The job was advertised as working in a young and highly-motivated team. The job advertisement also stated that very good English and German language proficiency was required. The claimant’s application was rejected by email without an assessment of the claimant’s knowledge and competence. The claimant claimed compensation because of discrimination relating to her age and her Russian origin, arguing that the requirement of very good English and German language proficiency would put English and German natives in a better position and correspondingly discriminated against her foreign origin. Furthermore, she alleged that the reference to a “young and highly motivated team” indicated that she was rejected because of her age (52). This would constitute discrimination. The defendant argued that the claimant was not rejected because of her origin. Foreign citizenship and origin would not constitute an “ethnic origin” in the meaning of the German General Equal Treatment Act. In addition, the requirement of very good language proficiency is important for communication in an international environment. The description of the team as being young and highly motivated related not to the age of an applicant but to the company itself as a startup.
With regard to language proficiency, the LAG held that the requirement of very good language proficiency (no matter that “very good” is not adequately defined) does not constitute discrimination because of foreign origin. Citizenship itself is not part of ethnic origin. Direct discrimination can also be ruled out because very good language proficiency is not related to a particular ethnic group. The claimant was not discriminated against because of her origin. Furthermore, from an objective point of view, it cannot be proven that the claimant was rejected because of her age. The expression itself is not clear but might constitute discrimination if it refers to age. Nevertheless, it depends on the individual case whether the job advertisement refers to the age or not. Within its decision, the LAG referred to the German dictionary Duden that defines “young” as “adolescent age” (with regard to animals and humans) and “not existing for a long time” with regard to companies and nations. In the present case, it could not be proven that the job advertisement referred to the age to the employees and not to the age of the company and that the claimant was rejected because of her age. As a result, the claim did not succeed.