The man applied for a job advertisement and was hopeful that he would get the job due to his previous experience and training. Contrary to expectations, the man, who sent his application documents to the company by email, promptly received a reply stating that he was “too old for this position”

The company subsequently tried to deny any accusation by claiming that the man had been too pushy. They had merely wanted to end contact with this person quickly. Furthermore, he had never been considered due to his alleged lack of field service experience and his personal behavior. Furthermore, the company tried to fend off the man’s claim for compensation by arguing that the advertised position had not yet been filled and was therefore still vacant. However, the Innsbruck Regional Court was in no way able to establish that the plaintiff had no experience, nor that he had become a nuisance to the company due to his nature or personality. The legal argument that the position had still not been filled and therefore discrimination could not be assumed in any case did not hold up in court.

According to the Equal Treatment Act, discrimination against a person does not necessarily require that another person is preferred in the case in question. The fact that an advertised position could not yet be filled does not change the direct discrimination of the plaintiff within the meaning of Section 19 (1) of the Equal Treatment Act. Direct discrimination exists if a person “is treated less favorably than another person is, has been or would be treated”. It is sufficient if someone is disadvantaged on the basis of their older age compared to a younger applicant, regardless of whether the latter is used as a concrete or merely fictitious comparison. The Court therefore approved the decisions of the Innsbruck Regional Court and the Innsbruck Higher Regional Court and dismissed the appeal by the defendant company.