By judgement of 21 June 2012 (docket no. 8 AZR 364/11), the
Federal Labour Court (BAG) has ruled that false or contradictory
information given by an employer regarding the reasons for a
negative personnel decision can be an indication of a
discrimination against the employee on grounds of ethnic
The case for decision by the BAG was a complaint filed by a
plaintiff born in Turkey whose fixed-term employment contract had
not been prolonged, whereas a comparable employee of German origin
had been offered an indefinite employment relationship by the
employer. The employer based its decision against the plaintiff on
performance deficiencies, despite having given her a reference in
which it qualified her work as being "to our utmost
satisfaction" ["zu unserer vollsten
In this connection the BAG states that the reasons underlying
the employer's measure must be correct. An evidently false or
contradictory reason could be considered an indication of a
discrimination. Since the factual situation had not been
conclusively clarified by the prior instance, the BAG referred the
dispute back to the Regional Labour Court
[Landesarbeitsgericht, LAG] of Rhineland-Palatinate.
With its decision on the presumption of a discrimination in case
of a deficient justification of personnel decisions, the BAG
concurs with a judgement of the European Court of Justice (ECJ)
dated 19 April 2012 (docket no. C-415/10). This was to be expected,
since the ECJ's decision in April 2012 was based on a
comparable issue that is still pending before the BAG. The ECJ had
decided that, although a rejected job applicant cannot
fundamentally demand an inspection of the job application
documentation of the hired candidate from the employer in order to
prove his own (purported) discrimination on grounds of ethnic
origin, the ECJ considered the withholding of any and all
information about the hired job applicant and the reasons for the
rejection to be factor which could be appraised as an indication of
a discrimination within a comprehensive overall consideration of
However, once the presumption of a discrimination on grounds of
ethnic origin or a characteristic that is frowned upon pursuant to
the German General Non-Discrimination Act [Allgemeines
Gleichbehandlungsgesetz, AGG] has been raised, experience has
shown that it is difficult for the sued employer to successfully
avert damage and/or compensation claims.
For employers, the judgements of the ECJ and BAG will mean
considerably more work and greater sensibility in their handling of
personnel decisions. Firstly, it is no longer sufficient to reject
a job applicant without giving a reason. Secondly, the reasons must
be correct or at least in line with the employer's usual
The BAG decision is presently only available in the form of the
press release; we will have to wait and see whether the grounds for
the BAG's judgement stipulates further requirements as to the
scope and content of an employer's justification of a negative
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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