Discrimination on Grounds of Sex

The principle of equal treatment between men and women has led the Court to develop an abundant case-law.

Discrimination against women in the workplace: general principles

As early as 1976, the Court held that the principle of equal pay between men and women provided by EU law has direct effect so that it may be relied upon by   an individual against their employer (judgment of 8 April 1976, Defrenne, 43/75).

The Court held that the exclusion of part-time employees from an occupational pension scheme may constitute indirect discrimination against women if that exclusion affects a far greater number of women than men and therefore could not be explained by objectively justified factors unrelated to any discrimination on grounds of sex (judgment of 13 May 1986, Bilka, 170/84).

Lastly, the Court has accepted the possibility of giving priority to the promotion of female candidates, where qualifications are equal, in sectors of the public service in which fewer women than men are employed in the relevant higher grade post in the relevant career bracket (‘positive discrimination’), as long as the advantage is not automatic and male candidates are guaranteed to be assessed without a priori exclusion of their application (judgment of 11 November 1997, Marschall, C-409/95).

Discrimination against women in the workplace: pregnant employees

In 1990, the Court held that both the refusal to employ a woman on account of pregnancy and the dismissal of a female worker for the same reason constitute discrimination on grounds of sex (judgments of 8 November 1990, Dekker, C-177/88 and Handels- og Kontorfunktionaerernes Forbund, C-179/88). The Court subsequently clarified that the prohibition of dismissal of a female worker based on her pregnancy applies to both employment contracts for an indefinite period and fixed-term contracts. In the same vein, the Court has established that non-renewal of a fixed-term employment contract is discriminatory if motivated by the worker’s state of pregnancy (judgments of 4 October 2001, Jiménez Melgar, C-438/99, and Tele Danmark A/S, C-109/00). The Court also held that the dismissal of a female worker during her pregnancy as a result of absences through pregnancy-related illness is unlawful discrimination on grounds of sex (judgment of 30 June 1998, Brown, C-394/96). The Court has, moreover, stated that the dismissal of a female worker on the grounds of pregnancy and/or the birth of a child is unlawful even if it is notified after her return from maternity leave (judgment of 11 October 2007, Paquay, C-460/06).

In addition, the Court held that the dismissal of a female worker who is at an advanced stage of in vitro fertilisation treatment and is, for that reason, temporarily absent, constitutes direct discrimination on grounds of sex, since such treatment affects only women (judgment of 26 February 2008, Mayr, C-506/06).

Other examples of discrimination on grounds of sex: insurance and the armed forces

The Court considered, in 2011, that taking into account the sex of the policyholder as a risk factor in insurance contracts constituted discrimination. That is the reason why, since 21 December 2012, premiums and benefits are calculated within the EU without distinction on the basis of the sex of the policyholder (judgment of 1 March 2011, Association belge des consommateurs Test-Achats andOthers, C-236/09).

The Court stated, in 1999, that the organisation and administration of the armed forces must comply with the principle of equal treatment between men and women even if access to certain units may be reserved exclusively for men because of the specific conditions for deployment of those units (commando assault units for example) (judgment of 26 October 1999, Sirdar, C-273/97). In any event, women cannot be barred outright from military posts involving the use of arms (judgment of 11 January 2000, Kreil, C-285/98).

Discrimination on grounds of gender reassignment

In 1996, the Court held that a dismissal based on the gender reassignment of a person or the intention to undergo gender reassignment constitutes discrimination, since that person is treated unfavourably by comparison with persons of the sex to which he or she was deemed to belong before undergoing gender reassignment (judgment of 30 April 1996, P. v S., C-13/94).

In 2004, the Court held that national legislation which, in failing to recognise transsexuals’ new identity, denies them the right to marry and is contrary to EU law if its effect is to deprive them of a survivor’s pension (judgment of 7 January 2004, K.B., C-117/01). In the same vein, the Court held, in 2018, that a person who has changed gender cannot be required to annul the marriage which he or she entered into before that change in order to be entitled to receive a retirement pension at the age provided for persons of the sex which he or she has acquired (judgment of 26 June 2018, MB, C-451/16).