Following on from our recent article on sex discrimination, the Court of Justice of the European Union (CJEU) issued a judgement stating the Greek government’s minimum height requirement to join the police amounted to indirect sex discrimination.
Indirect sex discrimination occurs when an employer’s rule or procedure is applied to all employees, but disadvantages those of a particular sex.
The case of Ypourgos Ethnikis Pedias kai Thriskevmaton v Kalliri was brought by Maria-Eleni Kalliri, who entered a competition to enrol in the Greek police school. On the competition notice it stated that all candidates must be a minimum height of 1.70m, without shoes. Ms Kalliri entered the competition with the required supporting documents. However, the administration refused to allow her to participate in the competition as she was only 1.68m tall.
The first question the CJEU had to consider was whether the minimal height requirement of at least 1.70m was compatible with Directives 76/207/EEC, 2002/73/EC and 2006/54/EC, which prohibit any indirect discrimination on grounds of sex in respect of access to employment, vocational training and promotion, and working conditions, in the public sector.
To put the minimum height requirement into perspective, the average height of a male in the UK is 1.78m compared to the average height of a female being 1.68m (Ms Kalliri’s height). In the present case, the CJEU found that a much larger number of women than men are of a height of less than 1.70m and, accordingly, women were “very clearly at a disadvantage compared with men as regards admission to the competition for entry to the Greek Officers’ School and School for Policemen”. This was sufficient to amount to indirect sex discrimination.
The CJEU then had to consider if the measure:
- could be objectively justified and shown to be unrelated to any discrimination on grounds of sex; and
- went beyond what is appropriate and necessary in order to serve the objective pursued
The CJEU found that whilst certain elements of police functions may require the use of physical force, requiring a particular physical aptitude, there are also certain police functions that do not. Furthermore, it was commented that:
“Regardless of if all the functions carried out by the Greek police required a particular physical aptitude, it would not appear that such an aptitude is necessarily connected with being of a certain minimum height and that shorter persons naturally lack that aptitude. In any event, the aim pursued by the law at issue in the main proceedings could be achieved by measures that are less disadvantageous to women.”
The alternative measures suggested by the CJEU included the pre-selection of candidates based on specific tests allowing their physical ability to be assessed.
The case highlights that whilst the law does allow for indirect discrimination in certain circumstances, employers need to be very careful on if the measure in question can be objectively justified and, if so, does it go beyond what is appropriate and necessary.
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