A company lost a case regarding age discrimination because they chose not to invite a 58-year- old applicant to an interview

Date 12 feb. 2010

a Company lost a case regarding age discrimination because they chose not to invite a 58-year- old applicant to an interview

Introduction

On 16 December 2009, the Board of Equal Treatment made a decision in a case regarding age discrimination. In the case, a public authority (hereinafter the “Employer”) was considered to have violated the regulations on equal treatment, as it chose not to invite a 58-year-old applicant (the “Applicant”) to a job interview. 

 

The case in brief

A 58-year-old man applied for a position as supervisor in a public authority, but was not invited to an interview. 69 persons had applied for the position. The 11 applicants that were invited to an interview were all between 34 and 50 years old. No qualified applicants older than 50 years of age were invited to an interview.

 

13 applicants with the same qualifications as the Applicant were not invited to an interview. 10 of these 13 applicants (including the Applicant) were more than 50 years old.

 

The Employer chose to grant the position to an applicant that was 47 years old.

 

Legal background

According to Section 1(2) of the Act on Differential Treatment, differential treatment takes place when a person is treated poorer based on age than another person is, has been or will be in a similar situation.  

 

According to Section 2(1) of the Act on Differential Treatment, an employer is not allowed to treat applicants for vacant positions differently based on age, gender, race etc.

 

In cases regarding differential treatment, the employer must raise the burden of proof, if the aggrieved applicant demonstrates actual circumstances which give reason to suspect that direct or indirect differential treatment has taken place. This follows from Section 7a of the Act on Differential Treatment.

 

The decision of the Board of Equal Treatment

The Board of Equal Treatment decided that the Applicant had demonstrated circumstances which indicated that direct or indirect differential treatment had taken place.

 

The Board attached importance to the fact that all of the 11 applicants that were invited to an interview were younger than 50 years of age, while 10 of the other 13 qualified applicants that were not invited to interviews were older than 50 years of age.

 

Thus, the Board did not find that the Employer had raised the reversed burden of proof and, therefore, ruled in favour of the Applicant. The Applicant was not awarded remuneration.

 

Comment

Even though the Board’s decision was directed at a public authority, nothing in legislation indicates that the decision should not apply to private companies too. Therefore, private companies should also be aware that it is prohibited to refrain from inviting a qualified applicant to an interview based solely on the age of the applicant.

 

If you have questions regarding the above or require additional information about regulation on differential treatment, please contact attorney Dan Moalem dmo@mwblaw.dk) or assistant attorney Lotte Witt (lwi@mwblaw.dk).

 

The above does not constitute legal counseling and Moalem Weitemeyer Bendtsen does not warrant the accuracy of the information. With the above text, Moalem Weitemeyer Bendtsen has not assumed responsibility of any kind as a consequence of a reader’s use of the above as a basis of decisions of considerations.