Issue: July 2018

GERMANY - "German as Native Language" in Job Ad Is Indirect Discrimination Based on Ethnic Origin

By: Gerlind Wisskirchen

What had long been suspected has now been clarified by the Federal Labor Court: the requirement "German as a native language" in job ads is indirect discrimination on the basic of ethnic origin.

The federal judges decided the case of a student born in Ukraine and a native Russian speaker. He had applied for a temporary job with a legal journal. In the job ads, "Requirements" included "German as a native language". When the young man was not hired and did not receive a rejection, he asked the employer for an answer - just four months after the expiry of the temporary position. A month later he was informed that the vacancy had been filled elsewhere. The student then claimed a disadvantage compensation in accordance with General Equal Treatment Act (AGG).

The German Federal Labor Court found that requiring a job applicant to have "German as native language" discriminates based on ethnic origin because the employer was thus expressing its interest in hiring only employees who had grown up in a German-speaking environment – regardless of an applicant's actual knowledge of the language.

The term “native language” could also not be interpreted to mean that the employer was merely seeking employees who had a very good command of the German language – regardless of their native languages – because that could have been accomplished by requiring applicants to have a "perfect" or "very good" command of German. The judges of the Federal Labor Court found there was no legitimate goal to justify the unequal treatment. Federal Labor Court judgment of June 29, 2017 - 8 AZR 402/15.

Gerlind Wisskirchen

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