Job advertisement for "digital native" is age discrimination

"Digital native wanted" may be acceptable when looking for a partner, but it can be costly when looking for employees. This is because this wording can constitute prohibited discrimination against older applicants. A ruling to this effect by the Heilbronn Labor Court against a sporting goods retailer based there has been confirmed by the Baden-Württemberg State Labor Court (case no. 17 Sa 2/24).

The term "digital natives" was coined by Marc Prensky in 2001 to describe the generation of people who have grown up with digital technology "such as computers, the internet and other mobile devices, and to contrast them with the generation of 'digital immigrants', the older generation" who have not grown up with it. The reasons for the ruling also cite Duden and Wikipedia with the same meaning.

This shows that the term does not refer to skills and experience, but to the fact that an applicant "is familiar with digital media from an early age because they were born into the digital world. This means that the term 'digital native' cannot be denied an age or generational reference." And the General Equal Treatment Act expressly prohibits discrimination against employees on the basis of their age. This protection already applies in the application process.

The facts of the case

In April 2023, the defendant employer was looking for a full-time "Manager Corporate Communications (M/F/D) Corporate Strategy" for its headquarters in Heilbronn. "As a digital native, you feel at home in the world of social media, data-driven PR, moving images and all common programs for DTP, CMS, design and editorial work (sic)," it said in the job advertisement distributed on relevant websites. And: "You are an absolute team buddy...".

The other requirements were high, including "university degree in PR, journalism, communication/media or economics", "several years of sound professional experience in print and online editing", "professional in the field of communication" and "passion for language and digital formats".

A business law graduate born in 1972 applied unsuccessfully. He then sued for compensation amounting to five monthly salaries of 7,500 euros each. The company in question defended itself in vain by claiming that it had not excluded the applicant due to his age. On the contrary, he was overqualified, lived in Berlin and his annual salary expectation of 90,000 euros gross was too high for a clerk. However, the labor court found that anyone who wrote "corporate strategy" in the headline was looking for more than just a clerk.

It found age discrimination, but awarded a lower compensation: one and a half months' salary at 5,000 euros, plus interest from the date the claim was filed (case no. 8 Ca 191/23).

Unsuccessful appeal

The international sporting goods retailer appealed unsuccessfully. The term "digital native" suggests that the company is looking for applicants who have grown up with digital technology "such as computers, the internet and smartphones and have integrated these into their everyday lives from an early age." "The reference to age is reinforced by the other passages in the job advertisement, in which the applicant sought is described as an 'absolute team buddy' and is offered tasks in a 'dynamic team'. From the point of view of an objective reader of the job profile, the reference to a 'team buddy' is aimed more at a younger applicant than an older applicant. And the term 'dynamic' also describes a characteristic that is generally attributed to younger rather than older people."

The court expressly leaves open the exact age at which a person can be a "digital native". The year 1981 is mentioned several times in English-language literature. In any case, the applicant born in 1972 was not a digital native and was directly discriminated against by the job advertisement due to his age. Although the law recognizes grounds for justification, the company had not even claimed that they existed. The alleged abuse of rights was not given.

In its recently published ruling from November, the Higher Labor Court only changed the decision of the court of first instance in one respect: interest only starts to run one day after the lis pendens, not on the same day. The non-employer must also bear the costs of the appeal proceedings. The Baden-Württemberg Regional Labor Court did not allow an ordinary appeal to the Federal Labor Court. The sporting goods retailer is not giving up and has lodged an appeal against denial of leave to appeal.

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