On September 7 2016 the Zurich Administrative Court ruled that female kindergarten teachers were not discriminated against, despite receiving 13% less in salary than male professional apprenticeship teachers.

On November 18 2015 three unions (including three kindergarten teachers) challenged a decree by the cantonal government, arguing under the Federal Equality Act 1995 that:

  • kindergarten teacher qualification requirements have increased (a bachelor's degree is now required);
  • the demands of the job have increased; and
  • kindergarten teachers giving 23 weekly lesson units corresponds to 36.5 work hours per week, with most cantonal full-time jobs at 42 hours per week.

The claimants further argued that the salary gap would constitute indirect discrimination if a per se gender-neutral salary system were to become discriminating, as it works de facto against a professional salary category mainly applicable to female workers. Such indirect discrimination is therefore given if at least 70% of female workers are active in a certain job category (eg, kindergarten teachers).

When comparing various job categories (eg, male professional apprentice teachers and female primary teachers), the Zurich Administrative Court held that the salary gap could be reasonably justified. The court identified a difference among the various bachelor's degrees that can be achieved in Switzerland, whereby bachelor's degrees which do not require a bacalaureat (matura) qualify lower than those which do require a bacalaureat.

According to the court, the complainants also failed to demonstrate that the demands of the job had increased substantially since February 1999, when the court had performed a comprehensive review of the classification of female kindergarten teachers under Salary Category 18 (while male professional apprentice teachers, for example, receive wages under Salary Category 20).

The court also held that the cantonal salary system is acceptable when differentiating between teachers whose work time is defined by weekly lessons as opposed to other governmental employees whose work time is defined by weekly working hours (eg, in the Canton of Zurich, a full-time job is 42 hours per week), as teachers have considerable freedom in organising their work and because the compensation calculated on weekly lessons also includes preparatory and administrative work.

The complainants' final argument that the female kindergarten teachers were given only 23 weekly lessons instead of a full-time pensum was also denied, as kindergarten children enjoy two free afternoons per week when no lessons take place. As a result, the court found it acceptable that the teachers should not be compensated for their off-duty time on those afternoons.

The decision is subject to appeal before the Federal Supreme Court.

For further information on this topic please contact Thomas Rihm at Rihm Rechtsanwälte by telephone (+41 44 377 77 20) or email ([email protected]). The Rihm Rechtsanwälte website can be accessed at www.rihm-law.ch.