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Too expensive or too old?‎

February 2012 - Employment. Legal Developments by Norrbom Vinding Law Firm, member of ius laboris.

More articles by this firm.

Discrimination - Anti-Discrimination Act
It constituted breach of the Danish Anti-Discrimination Act when a 34-year-old man was ‎rejected for a job as store manager because the employer wanted a “younger profile”. ‎This cost the employer EUR 3,400. ‎
Under the Danish Anti-Discrimination Act, employers are not allowed to attach ‎importance to age when recruiting new employees. This decision from the Danish Board ‎of Equal Treatment is an example of what will happen when age is a factor in an ‎employer’s decision not to hire an applicant. ‎
A 34-year-old man applied for a job as store manager. Having 10 years of experience, ‎he was a qualified candidate, so he was surprised when he received the following short ‎reply: "We have decided that we want a younger profile for the store...”. The applicant ‎believed the reply constituted age discrimination and filed a complaint with the Board. ‎
The store contested the applicant’s claim that age was a factor in the rejection for the ‎job. The store explained that the rejection was based on the fact that – because of his ‎considerable experience – the applicant would be too expensive to have on the payroll. ‎The store therefore preferred another applicant with shorter length of service and who ‎would be paid a lower salary. This surprised the applicant because the issue of pay had ‎not been mentioned when he was informed of the rejection for the job. ‎
Too late...‎

The Board found that the applicant had established a presumption of discrimination ‎simply by referring to the wording of the written rejection, and it was therefore for the ‎store to prove that the applicant had not been discriminated against. The store failed to ‎convince the Board that the principle of equal treatment had not been breached. Thus, it ‎did not make a difference that the store explained that the 34-year-old applicant had ‎been rejected for financial reasons, meaning that the store was unable to pay the salary ‎which the applicant would most likely ask for.
Norrbom Vinding notes:
  • that the decision shows that an employer may be justified in choosing a specific job ‎applicant based on the wish to hire a younger, less experienced and thereby less ‎expensive employee; but
  • that, in such case, the employer needs to carefully consider how the rejection should ‎be phrased, because a reference to the applicant's age may mean that the onus of ‎disproving that age was a factor in the rejection lies with the employer. ‎
The above does not constitute legal advice and should not be relied upon as such
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