Since the introduction of the General Equal Treatment Act (AGG), courts have repeatedly had to address whether job advertisements are formulated in a discriminatory manner on grounds of “race or ethnic origin, gender, religion or belief, disability, age, or sexual identity.” A frequent point of contention is whether a job advertisement excludes women as applicants.
The Regional Labour Court of Cologne now had to decide the inverse case.
A car dealership, which sells new and used cars and operates a workshop, had previously employed exclusively male staff in sales. Therefore, at the beginning of 2015, the car dealership placed a job advertisement with the headline “Women to Power” – with the ad text:
“To further strengthen our sales team, we are looking for a self-confident, committed, and success-driven female salesperson. If you enjoy selling automobiles and can convince people that we and you are the right partners for our customers, then apply to us. Automotive experience is a prerequisite for this position. …”
The male plaintiff also applied for the position and received a general rejection from the car dealership. Ultimately, a woman was hired who was ideally suited for the position due to her education and previous experience.
The plaintiff challenged this hiring and asserted a claim for damages amounting to EUR 8,775.00 under § 15 AGG, arguing that he had been discriminated against in his application due to his male gender.
The Regional Labour Court of Cologne has now dismissed or rejected the claim in the final instance with the following reasoning.
The targeted search by a car dealership for a female car salesperson in a job advertisement can be justified under § 8 para. 1 AGG if the employer has previously employed exclusively male individuals in its entire sales and service department. It can be assumed that, from the perspective of a segment of the clientele, the gender of the sales consultant plays a not insignificant role in the success of communication during a sales consultation. For the female segment of the clientele, precisely because of the traditional prejudice that technology is a male domain, there may be an impression of being more easily taken advantage of by male salespeople.
It must also be considered that for female customers, different criteria might be paramount for the purchase decision when buying a car than for male customers, leading the female customer to feel better understood in her needs by a female salesperson. A car purchase, especially for private customers, regularly represents a significant event of considerable economic importance. A car purchase is therefore often considered a “matter of trust,” especially since the salesperson typically possesses a knowledge advantage over the customer regarding market conditions and vehicle technology. In a transaction based on trust, the personality of the individual acting on behalf of the contractual partner takes on increased significance. The distinctiveness of a person's personality is also shaped by their gender.
Judgment of the Regional Labour Court of Cologne of May 18, 2017, File No.: 7 Sa 913/16
GoldbergUllrich Law Firm 2017
Master of Laws (Industrial Property Rights)
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Email: m.wagner@goldberg.de
