The news that the two US companies Facebook and Apple are to make the offer to their female employees of assuming the costs of having their ova frozen in order to make their career planning easier has created a furor in Germany.
The idea: Freeze your ova for your career!
Owing to the fact that the ratio of women in IT companies is generally relatively low, Facebook and Apple wish to make their company more attractive to women. As an addition to the employees' benefits for family and women, they are making the offer to their female employees of assuming the costs of having some of their ova removed and frozen, such costs amounting to up to 8,000 euros for the procedure and up to 400 euros for the storage of the ova. In doing so, they are offering them the option of postponing childbearing and hence, for the time being, of furthering their careers without hindrance. In this, critics see less an additional choice but companies' putting pressure on women to put their careers before family planning. More importantly, they fear that therein an additional prerequisite for accessing key positions will be seen and, as a result, for branding as career-shy those women who choose to start a family instead of freezing their ova.
Discrimination under German law?
Irrespective of ethnic or medical concerns, the question arises as to whether this kind of arrangement would trigger discrimination aspects under German law.
The precondition for discrimination within the meaning of the German General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz, AGG) is direct or indirect discrimination based on sex, racial and ethnic origin, religion or belief, disability, age and sexual orientation. In the case of social freezing, gender discrimination or age discrimination come into consideration.
1. Gender discrimination
The offer of social freezing may be considered discrimination based on gender pursuant to §§ 1, 3 of the German General Equal Treatment Act, because only female individuals can benefit from it.
Direct discrimination occurs when someone enjoys a treatment less favorable than a similar person, because of gender etc. Discrimination of a subgroup, as a part of a group with an additional characteristic, can also be qualified as direct discrimination. In US-American law, you call it sex-plus discrimination, because in addition to gender discrimination, cumulatively there is another distinguishing mark. In a decision of 20 August 2009 (2 AZR 499/08), the German Federal Labor Court (Bundesarbeitsgericht, BAG) ruled that dissuading a Muslim woman from wearing a headscarf or similar headgear is an act of direct religious discrimination even though it concerns only women. Taking this legislation into consideration, making the offer to freeze ova only to women of a certain age bracket, as the cumulative feature, is such direct discrimination of a subgroup, constituting an obvious disadvantage for those who are unable to take advantage of it.
One should also bear in mind that men are not submitted an offer of this kind, even though from their mid-thirties on men produce more defective sperms that can lead to deformities. The offer thus expresses that family planning and childcare is still women's business. In addition to that, it conveys the impression that a family and a career are mutually exclusive and that one has to decide either to have a career or a family.
According to § 3 (1) 2 of the German General Equal Treatment Act, direct discrimination is also deemed to exist if unfavorable treatment is connected to pregnancy or maternity. The offer to “socially freeze” ova may indicate that women without children will be put in a more privileged position than women who accept the offer and devote their entire attention to their job.
Moreover, such discrimination probably cannot be justified as a positive measure to avoid or balance disadvantages due to gender pursuant to the justification provision under § 5 of the German General Equal Treatment Act. The employer bears the burden of proving that there is no violation of the regulations protecting employees from discrimination under § 20 of the German General Equal Treatment Act. This could prove to be critical. The measures need to be objectively adequate and necessary to balance or avoid the disadvantages. and may not intervene excessively into the rights of the non-profiting employees. A measure is reasonable if the disadvantage can be balanced or probably avoided. In this case, offering social freezing is not reasonable when it comes to balancing or even avoiding the disadvantage of having children because it creates only the possibility to postpone family planning. In particular, there is no guarantee that the employee will actually become pregnant afterwards. Furthermore, the rights of the non-profiting employees might be infringed by the lack of financial compensation.
Assuming infringement of the German General Equal Treatment Act would have consequences for the validity of the social freezing agreement and could lead to damages and compensation claims or the right to refuse services. In a ruling of the German Federal Labor Court of 12 December 2013 (8 AZR 838/12), the court declared a termination of employment due to pregnancy invalid and granted the right to be awarded compensation under the German General Equal Treatment Act because of non-material damage. So in this case, the provision as agreed in the employment agreement would be invalid and the costs would need to be reimbursed.
2. Age Discrimination
Discrimination of female employees on grounds of age may also come into consideration pursuant to §§ 1, 3 (2) of the German General Equal Treatment Act as only women up to a certain age would be affected by this arrangement. Even if the offer is dedicated to all women, naturally only a portion of them can make use of it. This may constitute indirect discrimination because the regulation seems to be neutral but is able to discriminate employees on grounds of age. However, there is no indirect discrimination if the regulation is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. Enabling younger women to pursue their careers may constitute a legitimate aim. It is questionable whether such “neutral” provision can achieve this aim. This is doubtful as the impact of having a family is only deferred so that the career has to be interrupted later and the differences between women with children and those without or men will arise.
Moreover, social freezing arrangements encourage women to consciously decide against having children, at the same time being brandmarked because they have taken that decision even though they had the opportunity to postpone their family planning.
3. Discrimination pursuant to the German Constitution
Additionally, an infringement of the constitutional right of personality of female employees can be considered because self-determination in terms of shaping one's life is protected under Art. 1 (1) of the German Constitution. Self-determination could be impaired by the offer to assume the costs of freezing ova. This would be the case if affected female employees were no longer able to freely decide about their family planning but were more or less coerced into social freezing by their employers and the pressure associated with the offer. In addition to that, the question arises as to whether an employer may exert its influence in this private and intimate area of a female employee. However, proving an infringement of the general right of personality may be very difficult.
When it comes to gender discrimination, such discrimination must be measured against Art. 3 (3) of the German Constitution, which declares equality between men and women.
Referring to the above, discrimination needs to be justified as being a measure for the advancement of women under the precept of equal treatment pursuant to Art. 3 (2) of the German Constitution. In support of justification, parallels to the argumentation regarding the similarly disputed provision on the female quota can be adduced, in particular regarding the question of whether this actually is a case of equality or perhaps discrimination after all.
In conclusion, generally the equality and advancement of women in professional life must be advocated. Nevertheless, it is questionable whether the employer's offer to assume the costs of freezing ova supports this equality or whether, instead, it does run counter to equality after all and raises aspects of indirect discrimination under the German General Equal Treatment Act. It is in the nature of things that childbearing just happens to be the domain of women and cannot be changed by equal treatment efforts. However, what can be changed and should be improved is the inclusion of the family into professional life − and the advancement of working parents.