Gender equality at work

Introduction

Gender equality in the workplace is a fundamental principle of EU law. On several occasions, the Court’s rulings have reinforced this general principle, ensuring that men and women are treated fairly in their professional lives. Key questions include:

• How can the EU principle of equal treatment of men and women in the workplace be interpreted and applied?
• Is positive discrimination allowed?
• What happens if rules appear to be gender-neutral but in reality have a greater impact on one gender than the other?
• Do the same rules apply to benefits like pensions or parental leave?
• What are the rights of pregnant employees under EU law?
• How is the EU principle of equal treatment of men and women enforced in the context of employment in the military?

Gender equality at work: general principles

The Defrenne case was the first major case at the Court involving gender equality. It came from a Belgian court in 1975 that was hearing a case where an air hostess, Ms Defrenne, had sued the Belgian airline SABENA. She complained that she had been forced to retire at the age of 40, whereas male cabin crew were allowed to work longer. In addition, for a number of years she had been paid less than her male colleagues doing the same job. The Court ruled that the principle of equal pay for men and women had “direct effect”. This means that it could be relied on before national courts in cases between individuals and their employers. Ms Defrenne could use EU law in her case against her airline employer to claim equal pay for equal work (43/75 Defrenne).

A UK court asked the Court of Justice in 2019 about a case involving employees of British supermarket Tesco, who had claimed that they had not enjoyed equal pay for work of equal value. The claim was brought by employees who worked in the supermarket’s stores and who had been paid less than the predominantly male workers in the company’s warehouses. Because the work was not identical, the question arose whether the principle of equal pay for work of equal value also had direct effect and could be relied on before national courts. Tesco argued that it did not and that the employees could not make use of that principle before the national tribunal. The Court disagreed with Tesco’s argument, ruling that EU law on equal pay not only applies to cases of “equal work”, but also to “work of equal value” (C-624/19 Tesco Stores).

Positive discrimination

The Court has also been asked whether positive discrimination is allowed. Mr Marschall, a teacher, had applied for a promotion but was informed that a female candidate would be given priority. This was based on a rule that prioritised women for promotions when all candidates were equally qualified, particularly in public service sectors with fewer women in high-paid positions. The Court confirmed that this kind of positive discrimination, aimed at addressing inequality in the workplace, is allowed under EU law as long as it is not automatic. Male candidates cannot be excluded from the outset and each candidate must be assessed objectively (C-409/95 Marschall).

Indirect discrimination

In 1986, a German court asked the Court of Justice about a case involving Ms Weber, who had worked part-time in German department store Bilka-Kaufhaus for 15 years. She was denied pension payments because her contract required her to have worked there for 15 years full-time. Ms Weber argued that since more women work part-time, the rule was discriminatory and put women at a disadvantage. The Court stated that any rule excluding part-time workers from pension schemes could lead to indirect discrimination if it affects a far greater number of women than men. Such a rule could only be justified if it was based on objective reasons (170/84 Bilka).

In 2016, a Greek court asked the Court of Justice about a minimum height requirement for entry into police school. Ms Kalliri was not allowed to participate in a competition for entry into the Greek police school as she was under 1.70 metres tall. Ms Kalliri argued that this rule discriminated against women. The Court agreed on the basis that the rule seemed to work to the disadvantage of far more women than men. A height requirement could be justified if it was appropriate for achieving a legitimate goal. However, in this case, a height requirement appeared to be unnecessary: the physical fitness required for the police work was not connected with being a certain minimum height, and police tasks could be assessed more fairly through methods less harmful to women (C-409/16 Kalliri).

Benefits

A Greek court asked the Court of Justice in 2014 whether a Greek judge, Mr Maïstrellis, could be denied paid parental leave because his wife was not working at the time. In Greece, female civil servants with children were always entitled to paid parental leave. Male civil servants, however, could only receive it if their child’s mother worked. The Court answered that a national law cannot deprive male civil servants of the right to paid parental leave based on their wife’s employment status. This constituted direct discrimination on the basis of gender. Moreover, it reinforced traditional gender roles, keeping women in a primary caregiving role and men in a subsidiary role regarding their parental duties (C-222/14 Maïstrellis).

Four years later, a Spanish court asked the Court of Justice for guidance on preferential treatment for women with two children or more. These women received a pension supplement intended to recognise the demographic contribution of women to social security. A father of two asked for the supplement but was refused. The Court found that this rule was directly discriminatory and violated EU laws on gender equality. The Court said that women’s demographic contribution to social security alone was not enough to justify unequal treatment (C-450/18 WA v INSS).

Pregnant employees

In 1988, the Court of Justice received questions from two national courts – a Dutch court and a Danish court – concerning the refusal to hire and dismissal of pregnant women.

In the first case, Ms Dekker was rejected for a job at a training centre after disclosing that she was three months’ pregnant, despite being informed that she was the most suitable candidate for the job. The employer explained that they could not hire Ms Dekker because the training centre’s insurance would not cover her daily benefits during maternity leave (177/88 Dekker).

In the second case, Ms Hertz was dismissed from her part-time job at Aldi after taking sick leave due to complications caused by her pregnancy. Aldi informed Ms Hertz that they would be terminating her contract, as it was “normal practice” to dismiss workers who were often absent due to illness (C-179/88 Handels- og Kontorfunktionærernes Forbund).

The Court ruled that both employers’ actions were discriminatory, because refusing to hire or dismissing a woman due to pregnancy violates the principle of equal treatment for men and women.

In later judgments, the Court further developed its case law regarding the dismissal of employees due to pregnancy.

• The Court clarified that the prohibition against dismissing a pregnant employee applies to both fixed-term and indefinite employment contracts. It ruled that not renewing a fixed-term contract could be discriminatory if it was motivated by the fact that the employee was pregnant (C-438/99 Jiménez Melgar and C-109/00 Tele Danmark A/S).
• The Court recognised that dismissing an employee during her pregnancy due to absences caused by a pregnancy-related illness constituted gender-based discrimination (C-394/96 Brown).
• The Court held that dismissing a female employee as a result of her pregnancy or the birth of a child is contrary to EU law, even if the employee was only notified of this after she returned from maternity leave (C-460/06 Paquay).
• The Court found that a pregnant worker must have a reasonable time limit to challenge her dismissal. A short time-frame, such as two weeks, is not enough for her to seek legal advice and to contest the dismissal (C-284/23 Haus Jacobus).

In 2008, a German court asked the Court of Justice for guidance on a case involving Ms Mayr, a waitress who was dismissed from her job when she was at an advanced stage of IVF treatment. The Court ruled that women undergoing IVF treatment are protected by EU law against gender-based discrimination, as these kinds of medical procedures only affect women (C-506/06 Mayr).

Working in the military

In 1997, a UK court referred a case to the Court of Justice concerning gender equality in access to employment in the army. Ms Sirdar, a chef in the British Army and the Royal Artillery, was denied transfer to the Royal Marines as it did not admit women at the time. The Court acknowledged that EU law does allow for access to certain units, like front-line commando units, to be reserved for men due to specific deployment conditions. However these exceptions must be narrowly defined. The Court emphasised that the general organisation and administration of armed forces must uphold the EU principle of equal treatment between men and women (C-273/97 Sirdar).

A year later, a German court asked the Court of Justice whether women could be barred from military posts involving the use of firearms. Ms Kreil was rejected from the weapons electronics maintenance service of the Federal German Army – the law restricted women to voluntary roles in medical and military music services. The Court held that outright barring women from military posts involving the use of arms violated EU law. Such exclusions, affecting nearly all military posts in the Federal German Army, could not be justified by the specific nature of the roles or activities (C-285/98 Kreil).

Conclusion

These judgments collectively highlight the Court’s commitment to protecting gender equality in the workplace as required by EU law. The Court ensures that, in all the cases brought before it, discriminatory practices are dismantled and that equal treatment is upheld as a fundamental principle of EU law.