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Rejecting applicants: what is allowed and what is not?

How do HR managers decide whether an applicant gets the job or not? The most important criteria are probably professional qualifications. But it is not always these exclusively. Applicants can be rejected for many reasons. But which Reasons for rejection are legally allowed? So, for example, is it allowed Reject applicantsbecause they are too old, too small or too fat? Too tattooed? Are you from the wrong region? Have children? In principle, every employer has freedom of choice. But this also has its limits ...

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Reject applicants: This is legally permissible, but morally questionable

If the recruiter is bothered by an applicant's piercings, he can reject it because of his body jewelry. Regardless of the job, employers are allowed to sift according to appearance. That is morally questionable and anything but one fair hiring policy, however, it is legally permissible. As long as looks, height or weight are not openly cited as a reason for rejection, there is not much that can be done.

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AGG: The limits of freedom of choice

However, the situation is completely different when it comes to gender or age. It has been since 2006 General Equal Treatment Act (AGG) in force. In essence, it protects against being disadvantaged because of:

  • gender
  • Age
  • Race and ethnicity
  • Religion and belief
  • sexual identity
  • disability

The law protects:

  • trainee
  • Applicants
  • retired employees
  • Contract workers
  • Employee-like persons (self-employed or freelancers)

According to the AGG, there is a disadvantage due to the above criteria Prohibited in relation to recruitment, working conditions, wage payments, career opportunities and termination of employment.

For applicants, that means they Right to compensation if they are rejected in violation of the AGG (Section 15 AGG).

But what counts as a violation?

Discrimination can start with the formulation of the job advertisement. For example, if a “young, dynamic educator” is specifically sought, male and older applicants are discriminated against. The term "career starter" is also discriminatory, as the following case shows:

Ref .: 8 AZR 429/11 A hospital operator had directed a job advertisement for a trainee program “University Graduates / Young Professionells” specifically to “career starters”. A 36-year-old applicant with work experience with a legal protection insurance company and as a lawyer was rejected. The lawyer, of course, marched to the labor court and demanded compensation because he - because of his age - felt discriminated against. The company of course denied any discrimination - the candidate was not shortlisted because of his poor exam grades. The regional labor court ruled, however, that the job advertisement was basically an indication of age discrimination, because “young professionals” were specifically sought. However, the employer can exonerate himself if he can prove that the selection was really only based on the best grades.

Also allowed is the fact that a Applicant has children, no reason for rejection be. This was decided by the Hamm Regional Labor Court in the case of an applicant and mother of a school-age child:

Ref .: 11 Sa 335/13 A local radio station from North Rhine-Westphalia probably didn't know that, it was looking for "an accountant" with a completed commercial apprenticeship through a newspaper advertisement. The applicant, born in 1974, has a degree in administration and office management, is married and has one child. She applied for the position, with a curriculum vitae, of course. This was followed by a rejection, the application documents were attached "to our discharge". On the resume that was returned, the lady found, next to the line of text “Married, a child”, a handwritten note by the defendant: “7 years old!”, The resulting phrase “a child, 7 years old!” Was underlined throughout. A crystal clear discrimination, without a child she would have got the job. The Hamm regional labor court has therefore sentenced the radio station to pay compensation in the amount of 3,000 euros. The employer's note expressed that she had doubts as to whether the applicant could reconcile her duties as an employee with her family responsibilities.

Reject applicants: This is allowed

But there is also Exceptions. For example, certain requirement profiles leave restrictions by gender or religion to. A women's refuge, for example, is only allowed to employ women specifically because there are objective reasons for doing so.

Also church employers may select applicants for certain positions based on their church affiliation. Here it depends on whether the position is advertised in the area close to the preaching (activities that are directly related to the respective doctrine of the faith) or in the area remote from the preaching. As in the following case:

Ref .: 4 Sa 157/14 and 4 Sa 238/14 In the negotiated case, a plant of the Evangelical Church in Germany (EKD) advertised a position as a speaker. In the job advertisement, in accordance with church regulations, membership in a Protestant church or a church belonging to the working group of Christian churches as well as identification with the diaconal mission were required. A non-denominational woman nevertheless applied for the advertised position. When she was unsuccessful with her application, she sued and asked for compensation. Without success. The regional labor court decided that the EKD plant should be allowed to demand membership in a church.

What can applicants do if they suspect discrimination?

Does the Suspicion that your refusal constitutes a violation of the AGG, lawsuit can be filed. However, you have to prove this disadvantage with circumstantial evidence in court. Possible clues are, for example, a discriminatory job advertisement, notes on the application documents or a letter of rejection with an unlawful reason. Then it is up to the other side to prove that there is no Discrimination in the application process gave.

However, one applicant did no claim to find out whether another candidate has been hired or to inspect his or her documents.

Application rejections due to lack of qualification

If you do not have the necessary qualifications for a job, you will get a Discrimination lawsuit not be successful.

Also has a rejected applicant not entitled to compensationif he has not seriously applied for the position. Like in this case:

Ref .: 3 Sa 401/13 An applicant who didn't want the advertised job at all and instead preferred to put the employer to the test. The 50-year-old man applied for a position as a service technician or service engineer in the office. He had the knowledge required according to the advertisement, but his practical experience was several years ago. In addition, he sent a test application from a fictitious person who was 18 years his junior and who also had the necessary knowledge. The Schlaufuchs had come up with a partially similar résumé, used letterheads from schools and partly existing, partly non-existent companies, created certificates and used an old photo of himself. The desired practical experience of his test person was much more up-to-date. The company promptly fell for it and invited the younger test applicant, the real applicant was rejected. He immediately went to the labor court and demanded 10,500 euros for age discrimination. However, the Schleswig-Holstein State Labor Court did not participate and dismissed the lawsuit: The judges saw no evidence of discrimination, but instead considered the company's selection decision to be appropriate, after all, the fantasy candidate had the more up-to-date practical knowledge.

For employers: what should you watch out for in the event of cancellations?

To yourself to protect against lawsuits and claims for damages, employers are advised not to give specific reasons for a rejection. From a legal point of view, quite understandable. However, the image of a company suffers if applicants are no or impersonal Rejection of your application receive.

So here are some suggestions:

  • Feedback.

    In any case, you should give feedback to the applicants who were not shortlisted. This shows that treating applicants with respect is important to you. Because they put a lot of time and effort into preparing their documents.

  • Documents.

    Claims for damages must be submitted in writing within two months. The period begins with the receipt of the rejection letter. You should keep the documents until then.

  • Thank you.

    At the beginning of the letter you should thank you for the interest you have shown.

  • Cancellation.

    Immediately after the opening sentence, the rejection should be clearly formulated. A lack of qualifications can be named as a reason, for example.

  • Closing formula.

    At this point, you finally wish the applicant all the best and much success in their future career.

  • Length.

    It is important that you do not use too many words despite the bad news. Most applicants don't want to read it anyway and it quickly feels like a guilty conscience. You made up your mind, it didn't work out, but it's still not a personal judgment. Point.

SAMPLE EXAMPLE for a letter of rejection

Dear Mr. Mustermann,

you probably already guessed what was coming when you saw this envelope. It is also like this: unfortunately we have to refuse you. Your application was not shortlisted - mainly because we were more convinced by other applicants with regard to their accuracy of fit between the requirement profile and professional suitability.

Nevertheless, we have carefully checked your documents for possible alternative areas of application for you. However, we could not find any suitable vacancies that we can offer you here either.

Nevertheless, we would like to thank you for your interest in our company. We really appreciate the effort you put in and we also believe that your documents can be convincing elsewhere. We wish you a lot of success.

To ease our burden, we will send your application documents back to you.

With best regards

Peter HR
Recruiting specialist

PS: You can download the sample letter of rejection HERE as a PDF.

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