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 applicant, even though the applicant 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.

© Büro zur Umsetzung von Gleichbehandlung e.V. 2011