The Supreme Court found that a municipality had not practised age discrimination by not employing a 55-year old applicant, but the municipality was not able to meet the burden of proving that the principle of equality had not been violated.

The 55-year old applicant employed for a fixed term with the municipality's Borgerservice applied for a vacant position with the department.

The applicant received a rejection because she did not possess the personal qualifications required. The municipality also had to "respond to the generational change" that was to come as a consequence of many old employees being employed with Borgerservice.

Both the Eastern High Court and the Supreme Court found that, by stating this reason in the letter to the employee, there was a presumption that the employee had been subject to discrimination.

However, both courts found that the employer had met the burden of proving that the principle of equality had not been violated. The reason was that both courts - based on the witness explanations - took into account that the municipality had "to a significant extent attached importance to the personal qualifications". It appeared from the witness explanations that the 55-year old applicant was a relatively "reserved" person ensuring peace and stability, but the municipality was looking for a service-minded and extrovert person who could generally be the front-runner in connection with the development of Borgerservice.

The Danish Equality Board

The Equality Board has also decided on the matter.

One case concerned a 53-year old applicant applying for a vacant position with an IT company in November 2008. At the end of March 2009, the applicant applied again for a vacant position with the company, and he received the following rejection: "Unfortunately, your age falls outside our target group as we have a team of young people under 30 years of age, and they have requested a colleague about the same age as them."

On the basis of the rejection, the Board found that the applicant had been subject to direct age discrimination. The applicant was therefore awarded compensation of DKK 25,000.

Another case concerned a readvertisement of a position in which the company was looking for "young up-and-coming candidates". The company explained that the reason for this wording was the salary scale of the position. The applicant was 55 years of age, while the candidate who was offered the position after the opening interviews was 51. As this candidate turned down the offer, a 45-year old candidate was employed. The Board found that no circumstances had been proven giving rise to the assumption that the applicant had been subject to discrimination.

However, the Board found the company had not met the burden of proof by giving the below rejection to a 34-year old applicant: "We have decided that we want a younger profile at the shop". The applicant was awarded compensation of DKK 25,000.

Finally, the Board has awarded compensation of DKK 25,000 to several applicants after they had been rejected for the same position. In an advertisement, a company was looking for a reliable and steady young employee under the headline "job during a sabbatical year" and the upper age limit of 20. Two applicants - one being 31, the other 39 - were both rejected, and the company could not meet the burden of proving that age had not been decisive.

Conclusion

The Supreme Court ruling shows that even if age is of some importance in connection with employment, it is possible to meet the reversed burden of proof with factual and objective criteria which may easily be based on personal qualifications as the reason for employing the candidate in question. The Board's decision in the case concerning "young up-and-coming candidates" supports this assessment. Cases where the above is not possible are generally cases where the rejection has not been supported by other factual criteria.

The content of this Newsletter is not, and should not replace, legal advice.

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Finn Schwarz

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Marianne Lage

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