No violation of the General Equal Treatment Act in rejecting an external applicant who has reached the standard retirement age

The question of whether external applicants who were not previously employed by the employer and have already reached the standard retirement age may be rejected on the basis of their age was recently decided by the Federal Labor Court (BAG) (judgment of May 8, 2025 – 8 AZR 299/24). The BAG concluded that although age discrimination was present, it was justified. 

Facts of the case

In the case underlying the BAG's decision, the plaintiff, who was 67 years old at the time and severely disabled, had already reached the standard retirement age for statutory pension insurance and applied for a position in public administration. The collective agreement applicable at the employer's company stipulated that employees must leave the company upon reaching the standard retirement age. The employer hired a younger applicant, while the plaintiff received a rejection and was not invited to an interview (contrary to Section 165 (3) SGB IX).

The plaintiff then asserted a claim for compensation on the grounds of unlawful discrimination on the basis of his age and his severe disability (Section 15 (2) AGG).

Reasons for the decision

The BAG found that although the plaintiff had been discriminated against on the basis of his age, this discrimination was justified. The hiring of younger employees pursues the legitimate goal of achieving a balanced distribution of employment between the generations. This goal justifies not only the refusal to rehire employees who have left the company due to an age limit, but also the rejection of external applicants who have not previously been employed by the employer.

The prerequisite is that another applicant is available who has not yet reached the standard age limit and is also qualified. Whether the position is temporary or permanent is irrelevant for the justification.

The BAG also did not find any violation of Section 165 (3) SGB IX and thus no discrimination on the grounds of severe disability. A severely disabled employee does not have to be invited for an interview if they have exceeded the standard retirement age and their application may therefore be rejected.

Practical information

In its ruling of April 25, 2024 (BAG 8 AZR 140/23), the BAG had left open the question of whether the rejection of external applicants who had not previously been employed by the employer and who had reached the standard retirement age could also be justified. The current ruling has now clarified this issue.

External applicants who have reached the standard retirement age may be excluded, as may former employees, provided that a suitable younger applicant is available.