Challenges to “indirect discrimination,” that is, to facially neutral practices that have a disproportionate adverse impact on women and other disadvantaged groups—long a staple of U.S. employment discrimination law—are fast winning recognition in Europe. A recent highlight is the European Court of Justice (“ECJ”)’s ruling in Voß v. Land Berlin, Case C-300/06, on December 6, 2007.

In the case at hand, a part-time Berlin public school teacher claimed she was a victim of indirect discrimination on account of gender because hours that constitute overtime for part-timers but would be regular working hours for fulltime teachers were not compensated as favorably as they would be in the case of full-time teachers—a disparity that worked disproportionately to the disadvantage of women, because 88 percent of the part-time teachers in Berlin were female. In its preliminary decision, the ECJ ruled that this disparity was a form of gender discrimination in pay in violation of Article 141(1) of the EC Treaty, which provides that “[e]ach Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied.” In the court’s view, Article 141(1) prohibits indirect discrimination in pay, provided that (a) the percentage of affected female individuals is significantly higher than the percentage of male individuals, and (b) the differentiation is not justified by factors having nothing to do with gender.