Labour law

„The Court of Justice has held that the scope of the principle of equal treatment for men and women cannot be confined to the prohibition of discrimination based on the fact that a person is of one or other sex. In view of its purpose and the nature of the rights which it seeks to safeguard, it also applies to discrimination arising from the gender reassignment of a person.”

- 3. Recital of the Equality Treatment Directive (2006/54/EC) for the implementation of equal treatment of men and women in employment

No promotion due to pregnancy

Regional Labour Court of Berlin-Brandenburg, judgment of 28.06.2011 - 3 Sa 917/11

The employee was working for Sony in the field of “international marketing” as one of three department heads. In September 2005, the position of the supervisor became vacant. The employer filled the vacancy with a man and not with the by-that-time-pregnant plaintiff, even though the plaintiff had always been the representative of the previous holder of the position when absent.

The plaintiff filed a suit based on the AGG. As a justification she stated that she did not get the job because of her pregnancy. Among other things it was taken into consideration that the employer expressed the following while rejecting the plaintiff's application: "she should still be looking forward to her child." Upon her request, there were no concrete reasons given for the promotion of the mentioned colleague despite the fact that previously her application had been likely to be acknowledged. The employer on the other hand claimed that there had been objective reasons for the selection.

After several instances and an overall acknowledgment of all the circumstances, the Court of Appeal adopted the presumption that the employee had not been promoted owing to her pregnancy. This presumption could not be refuted by the defendant. It was therefore assumed that a gender discrimination took place, which is prohibited by the AGG.

The defendant paid compensation (see here) to the plaintiff in the lower five-digit span for gender-based discrimination.

 

Due to demands concerning body height as a prerequisite for employment, women are indirectly disadvantaged in relation to men

Labor Court of Baden-Württemberg, judgment of 29 April 2016 - 19 Sa 45/15

In October 2014, the plaintiff applied for the vacancy notice of the defendant for train drivers in the long-distance transport sector. In her application she also stated that she was 1.55 meters tall. She was not invited to an interview. A member of the works council of the defendant confirmed, upon the plaintiff’s request that the lack of invitation was due to her height.

The plaintiff then complained that she had not been invited to an interview because of her height.

The Labour Court in Karlsruhe gave the plaintiff a case and ruled that she should receive compensation under Sections 15 subparagraph 2, 7 subparagraph 1 and 3 subparagraph 2 of the AGG. The defendant railway company appealed, but without success.

The Regional Labour Court in Baden-Württemberg states that an indirect disadvantage can be assumed even if statistical data show that a considerably smaller percentage of women workers can meet the prerequisites, compared to male workers. According to the 2013 Micro-census, the average height is 1.78 m for men and 1.65 m for women. This means that on average women have a smaller body size.

The defendant also relied on the small height, which indirectly penalizes the plaintiff on grounds of sex, without factual reasons. In particular, safety-relevant tasks can also be fulfilled by a shorter individual.

The plaintiff is entitled to a compensation of €4,077.12 (two months' salary).

 

Lower wage for the same work

Regional Labour Court Rhineland-Palatinate, judgment of 13 January 2016 - 4 SA 616/14

Since December 1994, the plaintiff has been employed by the defendant's shoe factory. Up until December 2012, the defendant paid a lower hourly wage to employed women in comparison to men employed. There is no reason to justify this unequal treatment.

The attendance bonus, as well as the Christmas and holiday allowance, which are granted to the employees, is calculated on the basis of the hourly wage.

The plaintiff brought an action for the payment of salaries, leave of absence, attendance allowances, holiday and Christmas allowances that she missed due to being female. The Labour Court in Koblenz dismissed the action at first instance, as the plaintiff's claims went beyond the statute of limitations. The plaintiff then appealed.

The Labour Court in Rhineland-Palatinate ruled in favor of the plaintiff: She thus has a right to additional payment of wages, holiday allowance, sick pay, Christmas allowance and an attendance bonus. As the case deals with a back payment and not compensation, the two month statute of limitations (§ 15 para. 4 AGG) for damages is not relevant.

The wrongfully discriminated employee is therefore entitled to a benefit that was withheld. The Regional Labour Court ordered the defendant to pay the plaintiff €13,374.94.

 

Handwritten note on CV "7 years old!" constitutes discrimination on grounds of sex

Regional Labour Court in Hamm (Westphalia), judgment of 11 June 2015 - 11 Sa 194/15

The plaintiff replied to the vacancy notice looking for an accountant publicized by a local radiologist, the defendant.

She was rejected, and she found the words “7 years old!” written by hand on the resume, along with the lines "Married and “a Child" being underscored.

The plaintiff thereupon filed an action and argued that this memorandum constitutes an indication of direct discrimination on grounds of sex (because of her maternity) under Article 3 subparagraph 1, first sentence, of the AGG.

The Labour Court in Siegen did not take the action. The Labor Court in Hamm, did not give her the right to appeal, but the Federal Labor Court annulled the judgment of the Regional Labour Court and allowed a new trial and decision.

Finally, the Regional Labour Court in Hamm states that there is direct discrimination on the grounds of sex. A statement by the employer which would not have been made against the other sex can constitute a reason within the meaning of Section 3 of the AGG.

The handwritten underscore makes a link between the desired employment and the task of childcare, which is based on traditional family roles. The problem of childcare and professional activity has thus been negatively considered for the plaintiff. It should be stressed that the Regional Labour Court in Hamm refers to the evaluations of the micro-census 2010 by the Federal Statistical Office on the question of the compatibility of family and career. The court states that the analysis shows that the family formation and children influence women's earning behavior.

Statements which originate from traditional role patterns and illustrate these as the basis for the selection of persons can thus constitute direct discrimination. This may be, above all, the assumption that one of the two sexes is mainly responsible for childcare, as a workforce is less flexible or only available with restrictions.

The plaintiff is entitled to a compensation of €3,000 in accordance with Section 15 subparagraph 2 of the AGG.

 

Minimum length requirement in the police indirectly discriminates against women 

Schleswig-Holstein Administrative Court, judgment of 26.03.2015 - 12 A 120/14

In November 2013, the plaintiff applied for recruitment into the preparatory service of the Federal Police’ higher police service. However, due to her height (1.58 m) she was not considered in the application procedure. The minimum height requirement is 1.63m.

The plaintiff then brought an action for discrimination under the AGG. The Schleswig-Holstein Administrative Court ruled that the imposed height was an indirect disadvantage for women, under section 3 subparagraph 2 of the AGG on account of sex.

The employer, which in the present case is the federal government, is bound by the selection principles of Article 33 subparagraph 2 of the Basic Law. If an exclusion criterion is to be formulated, a factual reason is necessary, which is, in particular, proportionate to the indirect disadvantage. The disadvantage is therefore justified when the minimum requirement is a particularly important professional requirement. The court also refers to the essay by the professor of ethnology at the University of Vienna, Sylvia Kirchengast, who states in her essay "Minimum body height requirements for police officers - an international comparison" that often the minimum height criterion is dispensed with and rather individual characteristics such as physical fitness and defenses. Accordingly, the minimum height requirement is not a justified reason.

The plaintiff is entitled to a compensation of € 3,780.31 for indirect discrimination on grounds of sex.

© Büro zur Umsetzung von Gleichbehandlung e.V. 2011