Ageism in start-ups?

Looking for a young, dynamic team — ageism at start-ups?

Discrimination has many faces — and despite progressive awareness raising in society and legislative measures, it is unfortunately still frequently the order of the day. Such discrimination can have a particularly serious impact on the workplace.

Objective of general Equal Treatment Act (AGG) is therefore the elimination or prevention of discrimination on racial grounds or on the basis of ethnic origin, sex, religion or belief, disability, age or sexual identity.
Discrimination based on age is unfortunately still widespread today, particularly in working life.
This is due, on the one hand, to a lack of awareness of the seriousness of this form of discrimination, but on the other hand also to the fact that old age has traditionally often been, and in some cases still is, a link between legal, contractual and collective agreements.
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The prohibition of discrimination based on age is therefore a comparatively recent legal development and the pitfalls that employers can stumble upon do not only occur in job interview Let's go.
Attention is also required when it comes to job advertisements.
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It is therefore not surprising that labor courts have also been confronted with this issue more and more frequently in recent years.
Already 2016 The Federal Labour Court (BAG) found that the wording in a job advertisement, according to which applicants are offered work “in a professional environment with a young dynamic team,” constitutes direct discrimination on the basis of age.

And the start-ups?

Start-ups in particular often advertise with “young dynamic teams,” or keywords such as “Gen-Z” or “Millennials.”
Some employers or recruiters even go so far as to include certain age limits in the job posting.

Attention! Such an arbitrary setting of an age limit regularly violates the AGG. Successful lawsuits from rejected applicants are therefore firmly to be expected!

But what exactly is meant by a “young dynamic team”? And are start-ups perhaps in a special position there?

At least that's what it seems LAG Berlin , which recently dealt with the following case:

The 48-year-old applicant had applied for the position of “(Junior) Key Account Manager (f/m/d)” at a Berlin start-up.
The job posting stated, among other things: “We offer (...) a young team with flat hierarchies that gives you real creative leeway (...)”
The start-up filled the position elsewhere, whereupon the applicant filed compensation claims with the Berlin Labour Court in accordance with Section 15 (2) sentence 1 AGG in the amount of at least 5,000 euros.
He claimed that he was disadvantaged due to his age and that the job posting provided sufficient evidence of this.

However, the AG dismissed the lawsuit and the appeal to the Berlin LAG was also unsuccessful.
As a justification, the judges stated that in this particular case of a start-up that has not existed for long, the phrase “young dynamic team (...) with many design options” does not refer to the age of the employees, but rather to a workforce that has not yet worked together for long, in which there is still a lot of growth potential and scope for development.

But beware:

The proceedings are now pending before the BAG, so the last word has not yet been spoken.

Good to know:

The prohibition of age discrimination in German employment law is based on Sections 7 and 11 AGG.
However, this national legal basis is based on EU law, in particular on the EU Equal Treatment Directive (DIRECTIVE 2000/78/EC) as well as on the EU Charter of Fundamental Rights (Art. 21 ECRCH).
It should therefore be noted that the ECJ also has a say in the case of a disputed interpretation of the rules.

Conclusion:

Employers & recruiters are on thin ice with allusions to the age of the team and applicants, not only from a legal perspective.
Ideas that certain skills & knowledge are linked to young (or advanced) age should now really be considered obsolete in 2022.
Diversity in the workplace, on the other hand, is a real win-win for employees and employers!

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