Employment Law, Featured

Recruitment discrimination

You apply for a job. Get a rejection letter. Weeks later you see that the company advertises the same role again. Obviously they haven’t found anyone. So you apply again. And are rejected again although you meet the profile. Someone else gets the job. Or so you believe. Do you want to know why you didn’t get it?  

If it were me , it wouldn’t be so much the why I didn’t get the job. It would be more why I wasn’t even invited to an interview. After all, if I my profile is bang-on, I want to be considered. That someone else is better on the day, comes across better, has a better chemistry going with the panel – I don’t care, happens all the time. Job placements don’t work like putting a piece of bread in the toaster. Finding the perfect fit is complicated. Countless books have been written on that subject and a whole industry is making billions selling software, tests, and specialised recruitment services to find the best candidate for any given job. But if my profile is a match I expect to be interviewed. I just want to have the chance to compete. Not more.

Now, in the case the woman-applicant suspected some hidden agenda, some form of discrimination behind her being rejected. She wanted to know why and because its impossible to claim discrimination if you don’t know what happened, she asked the company for information about the successful applicant. Which the company didn’t provide. So the applicant sued. The German Federal Employment Court (BAG) wanted came to the conclusion that unsuccessful job applicants don’t have a right to ask for that kind of information and asked the European Court of Justice whether such interpretation is consistent with European Law. Which the Court held it was.

However, both Courts, the ECJ and the BAG, held that no answer from the prospective employer could indicate discrimination and allow a claim to proceed. How this could work, however, is unclear. There is a presumption in criminal and civil law that silence has no legal significance. You don’t respond to criminal charges, it is neither admission nor denial. You don’t respond to a contract offer, you have not accepted or rejected it. How can silence to a request for information than mean some improper motive is at play? That just doesn’t sound right.

This is not different to the law in New Zealand. An unsuccessful candidate can of course ask for all information about themselves under the Privacy Act. They might even, under the Official Information Act, find out more about the role, the process, the selection criteria. But information on the successful candidate is out of scope. And for a discrimination claim to even get off the ground, they have to point to some evidence of any of the prohibited grounds under the Human Rights Acts. A rejection alone wouldn’t do it.

But why not at least give an unsuccessful candidate the courtesy and respond with a bit more than your standard template rejection letter and explain why this time they weren’t successful? It does not only almost certainly exclude a litigation risk, it also protects your reputation. Who knows, you might want to offer the now unsuccessful applicant a job in the near future. You don’t want to find out that they they thought you were an arrogant snob and told all their connections on Facebook, LinkedIn and XING about it. Including the other candidate you wanted to now hire. And who is not interested anymore.

On the other hand, unsuccessful applicants who sue because they got rejected usually have some other issues as well. Good people are too busy too sue. They move on and apply for the next job. In a way, an unsuccessful candidate who takes the rejecting prospective employer to court only confirms it was the right decision not to hire them.  Which is great, but my advice would still be to write a nice rejection letter. You will look better later in Court. Or in the Authority.

Germany: Have Rejected Job Applicants the Right to Know the Reasons for Not Getting the Job?