A German labour court recently held that the use of the term 'digital native' in a job advertisement can, under certain circumstances, be interpreted as unlawful discrimination on the grounds of age.
The general understanding of the term 'digital native' refers to a person from a generation that grew up with digital technologies or in a digital world. The plaintiff job applicant was born in 1972. In the court's view, he did not fall within this definition. He was therefore able to successfully invoke the prohibition on age discrimination and recover compensation.
Background
The defendant employer advertised a position as 'Manager of Corporate Communication and Corporate Strategy'. The job advertisement read in part as follows: 'As a digital native, you feel at home in the world of social media, data-driven PR, video, and all common programs for DTP, CMS, design and editorial work.'
The plaintiff applicant, born in 1972 and a qualified business lawyer, applied for the position and was rejected. He viewed the rejection as discrimination on the grounds of his age and demanded compensation from the employer. The employer refused to pay compensation, and the applicant filed suit.
The labour court agreed with the applicant's argument and awarded him compensation of EUR 7,500. It interpreted the use of the term 'digital native' as evidence of prohibited age discrimination.
The legal background
The background to this decision is the German General Equal Treatment Act. Its aim is to 'prevent or eliminate discrimination on the grounds of race or ethnic origin, gender, religion or belief, disability, age or sexual identity'. Discrimination on the basis of one of these grounds is prohibited. In order to ensure comprehensive protection against discrimination, the Act also covers applicants. The Act even explicitly provides that a job may not be advertised in violation of the prohibition of discrimination.
Anyone who believes that they were unlawfully discriminated against in the application process and rejected for this reason can invoke the protective provisions of the Act and assert a claim for compensation. The law helps rejected applicants with a presumption: If they can present evidence that they were disadvantaged based on one of the prohibited grounds, the defendant (i.e. the employer) must prove that there was actually no discrimination. To do this, the employer must show that non-discriminatory criteria were applied when deciding on the application.
In practice, such proof can be difficult to provide (hence some practical tips at the end of this article).
'Digital Native' as an expression for a generation
The court examined the term 'digital native' in detail. It came to the conclusion that the term 'has a generational connotation in common usage.' A digital native has grown up with digital technologies and is proficient in using them. The digital native must therefore be distinguished from the digital immigrant (i.e. a person who is not used to using digital technologies from childhood and has had to learn how to do so).
According to the court, any employer looking for a digital native is not looking for a person with solid (but perhaps 'only' learned) knowledge of the digital world, but rather a person who grew up with it. If the defendant employer had really only been interested in the applicant's skill level (regardless of generation), the labour court reasoned that the employer could have dispensed with the term 'digital native' in the job advertisement.
The labour court saw this as an indication of direct discrimination on the grounds of age. Since the employer was unable to refute the presumption of discrimination, the labour court awarded compensation to the applicant.
Takeaway for Employers
The crux of such cases is usually the question of evidence: In the event of a dispute, can the employer advertising the position demonstrate and prove that the selection of applicants was carried out without discrimination?
In concrete terms, this means that the employer must be able to prove that the rejection of the person in question was based on reasons other than those listed in the German General Equal Treatment Act. For the application process, this means that care must be taken from the outset to ensure that the decision for or against applicants is not only made without discrimination, but that the decision-making process is also documented in a comprehensive manner.
It is best if it can be shown that the applicant was rejected for the position due to a lack of qualifications. According to the labour court, it is also helpful if it can be demonstrated that a specific procedure was followed when processing the applications, which excludes discrimination against the applicants on prohibited grounds.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.