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The Federal Labor Court in Erfurt has strengthened the rights of women: If a woman earns less than male colleagues in a comparable position, this is considered an indication of discrimination
Photo: Jens-Ulrich Koch / epd / imago images
The Pay Transparency Act is intended to ensure more fair wages between women and men.
But what actually happens when an employee realizes that her male colleagues earn more and the employer still doesn't want to increase her salary?
The Federal Labor Court has now dealt with this question and has passed a judgment that strengthens the negotiating position of women in such cases: If a woman earns less than the average income of men in the same position, this is an indication of discrimination on the basis of gender (file number : 8 AZR 488/19).
The employer can refute the suspicion of discrimination, but the burden of proof is then on him.
In the specific case, a department head of the Landschaftliche Brandkasse Hannover suspected that she earned less than her male colleagues and had asked her employer to provide information about the income of male colleagues in a comparable position.
According to the Pay Transparency Act, companies with at least 200 employees are entitled to this information if there are at least six employees in the comparison group of the opposite sex.
The employer then has to name the so-called median of the comparison group, i.e. the “mean income” of the man who has the same number of male colleagues with higher and lower incomes.
The Fire Fund gave the requested information, and the woman found that both her basic salary of 5,685.90 euros gross and her allowances of 550 euros gross were below the male median: the median basic salary for male department heads was 6,292 euros gross and the allowances amounted to 600 euros gross per month.
With her lawsuit, the woman demanded payment of the difference.
The employer refused and denied discrimination.
There are good reasons for the income differences;
For example, some male department heads have been with the company for a longer period and are better qualified.
Employers should now show that there is no discrimination
The case was first heard before the Göttingen Labor Court and then before the Lower Saxony State Labor Court - where the woman initially failed.
Her salary is below the median, but this information alone is not sufficient to determine discrimination, the state labor court found.
The Federal Labor Court now sees it differently.
With their landmark ruling, the Erfurt judges make it clear that earnings by a woman below the median of men are very much an indication of “wage disadvantage because of gender”.
If the employer sees it differently, it is up to him to provide evidence.
Now the fire fund is to be given the opportunity before the Lower Saxony regional labor court to prove that the differences in income are actually due to differences in length of employment and qualifications, as it claims: The highest income in the group of department heads is also due to a woman.
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