German Federal Employment Court decided that, with regard to indirect gender-related discrimination, the particular discrimination against one gender can be demonstrated by an apparently neutral criterion with reference to statistical surveys. The survey referred to must be meaningful, that is, valid for the disputed case. The defendant operates a local radio station and in spring 2012 was seeking an accountant with completed business management training for a full-time job. The claimant applied for this job in April 2012, pointing out her administrator and office clerk training courses in the enclosed CV. Furthermore, in her CV she stated "family status: married with one child". At the beginning of May 2012, the claimant received a letter of refusal; in the returned CV, "aged 7!" had been added to the information on her family status; this addition and the information "one child" stemming from the claimant were underlined. The claimant deems herself discriminated against as a mother of a school-age child striving for full-time employment. The defendant's note in her CV suggests that the defendant considers full-time employment and care for a seven-year old child irreconcilable or poorly reconcilable. The defendant refused compensation due to gender-based discrimination. It pointed out that it had hired a young, married woman who was more highly qualified.
The court affirmed gender-based discrimination. However, contrary to the view held by the claimant, taking the criterion of "one child, aged 7" as a basis does not constitute direct gender-based discrimination. Such direct discrimination is shown to exist where one person is treated less favorably than another person has been or would be treated. With regard to recruitment, direct gender-based discrimination is shown to exist also in the case of less favorable treatment of a woman due to pregnancy or maternity. However, this refers only to facts that cannot affect men and women in the same way. The criterion of maternity covers only circumstances that are directly connected with pregnancy and delivery and are inextricably linked with a woman's gender. This includes, for instance, making use of periods of maternity leave directly before and after delivery.
Taking the criterion of "one child, aged 7" as a basis, however, constitutes indirect gender discrimination.
Indirect discrimination is shown to exist where an apparently neutral provision, criterion or practice can put individuals at a particular disadvantage compared with other individuals, unless the relevant provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving such aim are appropriate and necessary. It is about situations in which the detrimental effect typically affects mainly individuals belonging to a particular group: This may give rise to the assumption that precisely the fact of belonging to such group is the decisive cause of the discrimination. Prohibited indirect discrimination due to female gender requires that considerably more women than men are members of the group put at a disadvantage by the measure or rule compared to the favored group.
The possibility of indirect discrimination has already been acknowledged in the following cases:
- Where perfect knowledge of the German language is demanded in a job advertisement; typically, this has particularly detrimental effects on applicants from other ethnic groups.
- Where part-time employees receive less remuneration for overtime hours worked in the period between the regular end of their working hours and that of full-time employees than the latter receive for the hours regularly worked by them if the unequal treatment affects considerably more women than men.
- Where special flexibility in terms of time is required in relation to hiring. A job requirement of this kind is apt to put women at a particularly great disadvantage because still today it is mainly the latter who are responsible for the family and the household.
- Where it is about issues of reconcilability of professional life and family duties because even today society mainly allocates the latter to women and and the latter are performed by women.
In the present case, this applies accordingly to the criterion of "one child, aged 7". This criterion takes the issue of reconcilability of professional life and care for a minor child of elementary school age into account. The issue of "reconcilability of family [with minors] and professional life" quite predominantly affects woman in societal reality. Childcare is still mainly regarded as the task of women and is primarily carried out by women. This finding is confirmed by the data and the evaluation of the 2010 micro-census by the German Federal Bureau of Statistics: The results of the census show that starting a family and children impact on the economic activity especially of women. While the highest quota of economic activity of women of about 70 percent is not reached until the age of 40 to 50 years, fathers across-the-board are more often economically active than men without a child. Sixty percent of mothers and 84 percent of fathers are economically active. Of the economically active mothers, in turn, 70 percent work (only) part-time, whereas only short of 6 percent of the fathers do. When the child grows older, the quota of economic activity of mothers increases considerably, whereas the fathers' involvement in professional life is largely not linked to raising children. If both partners are economically active, full-time employment of the father combined with part-time work of the mother is by far the most common working hours model.
The hand-written addition and the underlining of the sequence of words " one child, aged 7!" in the claimant's job application documents constitutes a secondary factor that gives rise to the assumption of gender discrimination.
According to general experience, the hand-written addition and the underlining of the sequence of words " one child, aged 7!" suggests that the problem indicated by this of reconcilability of childcare and professional occupation was part of a bundle of motives that lead to refusal of the claimant's application. This indicative effect has not been eliminated by the defendant's pleadings. The pointer that the hired applicant was better qualified does not refute the assumption.
Defendant's appeal on a point of law with Defendant being ordered by the Regional Employment Court to pay compensation in the amount of €3,000.00 because of indirect discrimination against the claimant was thus unsuccessful before the German Federal Employment Court.