No. 07-00-602/2024-02  Date: 10.11.2025.

OPINION

The opinion was issued in proceedings based on a complaint submitted by A.A. against B.B. due to discrimination on the grounds of sex and age in the employment process. In the complaint, he stated that he believes he was discriminated against, bearing in mind that women are predominantly employed in human resources, which in practice prevents or reduces opportunities for men to be employed in this department, and that it appeared to him that the company was seeking a female candidate, given that women constitute the majority at other locations in the HR sector. In the complaint, he stated that he applied for the HR Generalist position in Belgrade at company B.B., that the interview was scheduled via the Zoom application, and that the recruiter conducted the interview pro forma, considering that he was late to the interview and that the entire interview lasted 10 minutes. He further stated that several days after the interview he received an email “with a rejection” stating that he had not passed to the next stage of the selection process, after which he contacted the company by email, to which the recruiter responded by referring to a vacancy for an engineer rather than the position in human resources. He also stated that a female candidate with less work experience than him was hired for the position he had applied for, which is why he believes he was discriminated against on the basis of age as well. In the response to the complaint, the director of B.B. stated that on 17 July 2024 the recruiter contacted the complainant to schedule a job interview for the HR Generalist position, which was held on 22 July 2024 via the Greenhouse platform, and that the recruiter asked him questions related to “termination processes and exit interviews,” which confirms that there was no confusion regarding the position for which the interview was conducted. The response further states that the candidate who was hired passed all selection rounds and that, following the vacancy announcement, the best candidate was selected, namely the candidate who received the highest ratings from all team members throughout the entire selection process, for which evidence was provided as attachments to the response. They particularly emphasized that team members within the B.B. group do not have access to their colleagues’ feedback until they submit their own assessment of the candidate, and that, having regard to the above, they stress that the selection process, including the interview and the decision on employment, was conducted in accordance with established procedures and objective criteria. Bearing in mind the statements from the response that the company is part of a broader corporate system whose parent company, responsible for recruiting and interviewing candidates at the global level, is registered in the United States of America, the Commissioner first assessed whether the Commissioner was authorized to conduct proceedings on the complaint. In this regard, by reviewing the Register maintained by the Serbian Business Registers Agency, it was established that company B.B. is entered in the register. Given that the complaint was filed against this company and not against the recruiter, and that the company did not dispute that it is responsible for the selection of candidates under the announced vacancy, the Commissioner continued the proceedings on the complaint. Considering that no one other than the complainant and the recruiter was present at the job interview, it is not possible to determine the exact course of the conversation. However, neither party disputed that the interview was conducted for the HR Generalist position, since the questions related to the said position (termination, exit interviews, etc.). The subsequent communication between the complainant and the recruiter, after the complainant was informed that he had not passed to the next stage of the selection process, was explained by the company as a misunderstanding, given that two candidates with the same name applied for different vacancies – the human resources position and the engineering position – and both did not advance to the next selection round. Since the complainant believes he was discriminated against based on sex because women are predominantly employed in the human resources department, the Commissioner pointed out in the opinion the legal provisions relating to the application of special measures. In order for a special (affirmative) measure to be applied and for preference to be given to a candidate of the underrepresented sex, in addition to a prior analysis and employer decision, it is necessary that there be two candidates who are equally evaluated, which was not the case here. In analyzing this case, the Commissioner also considered the practice of the European Court of Human Rights. According to the position of this Court, affirmative measures must be proportionate and based on equal qualifications, bearing in mind that automatic preference given to one sex without individual assessment is not in accordance with the Convention. The Commissioner agrees with the complainant’s statements that a 10-minute interview may represent insufficient time for an interview. However, the facts cited by the complainant relating to the interview being short and the recruiter showing disinterest and confusion cannot be causally linked to his sex or age as personal characteristics. The Commissioner also took into account the fact that, just as the complainant did not pass the first selection round, this elimination round was also not passed by a candidate with the same name as the complainant, who applied for an engineering position at the same company, where, according to research, men are more frequently employed. Regarding the claim that the complainant was also discriminated against based on “age,” because the candidate who was hired for the HR Generalist position had less work experience than him, the Commissioner points out that work experience does not constitute a personal characteristic under the law, and that persons of the same age may have the same work experience. In addition, in the job posting for the HR Generalist position, in the section relating to “qualifications,” it was not specified which faculty was required for applying, and regarding work experience it stated “approximately 5 years,” which, according to the company’s statements, was intended to encourage a larger number of candidates with different professional backgrounds and levels of experience to apply for this position. Taking all of the above into account, by applying the rule on shifting the burden of proof, the Commissioner issued an opinion that employer B.B. did not discriminate against the complainant on the grounds of sex and age as personal characteristics. Although in this specific case discrimination against the complainant on the grounds of sex and age as personal characteristics was not established, bearing in mind the importance of finding adequate employment for each individual, the company should ensure that every interview is approached in a professional and equal manner, respecting the personality of every person who applied for the job, in such a way as to inform them in a timely and proper manner of the outcome of the selection process. Furthermore, the Commissioner, acting within its competences under Article 33, paragraph 1, item 9 of the Law on the Prohibition of Discrimination, recommends to company B.B., as an employer, to assess at the level of the entire company the situation regarding the gender structure of employees and any potential need to adopt a planning document and apply special measures for employing the underrepresented sex, in such a way that, in cases of equally qualified candidates for employment, preference is given to the candidate belonging to the underrepresented sex.

COMMISSIONER FOR THE PROTECTION OF EQUALITY

Brankica Janković