Since the introduction of the General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz - AGG), the courts have had to deal time and again with the question of whether job advertisements are worded in a discriminatory way on the grounds of "race or ethnic origin, gender, religion or belief, disability, age or sexual identity". A frequent issue of dispute is whether a job advertisement excludes women as applicants.
The Cologne Higher Labour Court (LAG) now had to decide the opposite case.
A car dealership, which sells new and used cars and runs a workshop, previously employed only male sales staff. At the beginning of 2015, the car dealership therefore placed a job ad with the headline "Women in power" - with the ad text:
"To further strengthen our sales team, we are looking for a self-confident, committed and success-hungry salesperson. If you enjoy selling cars and being able to convince people that we and you are the right partners for our customers, then apply to join us. Automotive experience is a prerequisite for this position. ..."
The male plaintiff also applied for the job, but received a general rejection from the car dealership. Finally, a woman was hired who was ideally suited for the position due to her education and previous work.
The plaintiff objected to this recruitment and asserted a claim for damages in the amount of EUR 8,775.00 pursuant to section 15 AGG, since he had been discriminated against in his application because of his male gender.
The Cologne Regional Labour Court (Landesarbeitsgericht Köln) has now dismissed or rejected the action at last instance on the following grounds.
A car dealership's targeted search for a female car salesperson in a job advertisement may be justified under section 8 (1) AGG if the employer has so far employed only male persons in its entire sales and service area. It may be assumed that from the point of view of a part of the clientele, the sex of the sales assistant plays a not unimportant role in the success of the communication in the sales talk. Thus, the female part of the clientele may have the impression that they are more easily taken advantage of by male salespersons, precisely because of the traditional prejudice that technology is a male domain.
It must also be taken into account that female customers may have different criteria for deciding to buy a car than male customers, so that the female customer feels that her needs are better understood by a female salesperson. A car purchase is regularly an important event with considerable economic consequences, especially for private customers. Therefore, a car purchase is often regarded as a "matter of trust", especially since the salesperson regularly has an advantage over the customer in terms of knowledge about the market conditions and the technology of the vehicles. In a transaction based on trust, the personality of the person acting on behalf of the contractual partner is of increased importance. The character of a person's personality is also shaped by his or her gender.
Judgement of the LAG Cologne of 18.05.2017, ref. no.: 7 Sa 913/16
GoldbergUllrich Attorneys at Law 2017
Master of Laws (Industrial Property)
Certified data protection officer (TÜV NORD)
E-mail: m.wagner@goldberg.de
