Project Manager doesn't take application from Nationality X, because there are "too many"

Question

I have made a recommendation for a developer position in another team, and the Project Manager rejected the application of this developer because in his team there are other 5 developers from the same nationality. His argument is that the team needs to be more diverse.

We are a multi-cultural, and diverse company, with people from many difference countries. In this team, there is a substantial amount of people from the same place, mother language, etc.

Although we aim to be a diverse company, I am just concern with any legal implications, as well, as not given the wrong impression to the team, especially the ones from nationality X.

He did not actually say, "there are too many", he said something like:

"Right now we would like to give the chance to other nationalities, and to bring more diversity into the team, rather than hiring again people with similar backgrounds or similar culture."

We are a German Company, is this a valid reason to reject a candidate?

Answer 1

This question has at least three sides, so better read it as a whole:

First, from an business point of view the manager is probably right when he does not want his team to consist of people of a single nationality, especially if that's not German. I have seen this and there is a very real risk of such a team drifting apart from the rest of the company because they won't even try to get into German customs and following German rules. Prime examples would be eastern European programmers, who would comment their code in Cyrillic letters (probably Russian) despite company guideline to use English, so that their work output is basically worthless to anyone but them. A company cannot take such a risk.

Legally, discrimination based on something the person cannot change is forbidden. The relevant law is called the Allgemeines Gleichbehandlungsgesetz (translated: Common Law of treating all people equal). Relevant §§.

Ziel des Gesetzes ist, Benachteiligungen aus Gründen der Rasse oder wegen der ethnischen Herkunft, des Geschlechts, der Religion oder Weltanschauung, einer Behinderung, des Alters oder der sexuellen Identität zu verhindern oder zu beseitigen.

Translation

The aim of this law is to remove or hinder the discrimination based on race, ethnic background, gender, religion or world view, a disability, age or sexual identity.

Please note that Nationality is not one of them. Only ethnic background. So by the letter of the law, "I don't hire arabs." would be discrimination, "I don't hire Egyptians." would be fine. Although separating one from the other probably takes a court.

There are exceptions to the law though. Positive discrimination does exist and is legal. You will often find sentences like this

Bei gleicher Eignung werden Frauen und Behinderte bevorzugt

Translation:

Technical skills being equal, women and disabled people will be preferred.

As most of the workforce in Germany is dominated by white males, going for more diversity is allowed and even enforced by unions and civil administration. So I am no lawyer, but if your team already consists of X people of the same trait, looking for one who is different does have indeed a precedent with women and disabled people.

Conclusion: To actually get a solid answer, you'd need a very specialized lawyer. But from just reading the laws, the statement of your boss seems borderline, but ok. There is precedent for exceptions and it actually makes sense (as opposed to a general "no blacks" or "no women"). However, it's laws. Much depends on how good your lawyer is at twisting and bending the laws to his will.

Answer 2

The Project Manager rejected the application of this developer because in his team there are other 5 developers from the same nationality.

My assumption is that nationality was the sole reason for the candidate's rejection.

Legality aside, this looks bad.

This type of behavior on the part of your Project Manager contributes to an intolerant working environment. This is how systemic racism builds.

What the Project Manager should have done was to have the candidate interviewed. If the candidate was lacking in either soft or technical skills, so be it.

To reject based solely on nationality is likely unethical and probably bad for business, especially in the case of referrals, which are often the best candidates.