Our national women’s soccer team is – we hope – on the verge of a tournament success. Wednesday is their semifinals, fingers crossed. Inspired by their performance, the Chancellor tweeted: “It’s 2022. Women and men should be paid equally. This also applies to sport, especially national teams.”
In fact: unequal treatment always seems to need justification, disadvantage can be unjustified discrimination. But is it in this case? With men’s football, more advertising revenue can now be generated, more spectators can be attracted to the stadium at higher ticket prices, television rights can be sold more expensively. Isn’t it right that women’s earnings are lower?
The topic is topical, far beyond football. Every employer is already obliged by the General Equal Opportunities Act to ensure the application of the principle of equal pay for men and women not only for equal work, but also for work of equal value. But what is equal and what is not?
The Pay Transparency Act already stipulates, for example, that work of equal value is available “if, based on a total of factors, it can be regarded as being in a comparable situation”.
And further: “Factors to be considered include the type of work, the training requirements and the working conditions. It is to be assumed that the actual requirements, which are essential for the respective activity, are independent of the employees performing the work and their performance.”
These are all factors that are linked to work and qualifications, but not to value creation. This limitation cannot be right. When two do the same thing, it’s not the same.
The leading case in the USA – the motherland of anti-discrimination legislation – is Spaulding v. University of Washington, where the defendant university set faculty salaries at different rates.
The professors at the School of Nursing (mainly women) were paid less than the Business School (mainly men) because this corresponded to the usual remuneration for this activity. A professor wasn’t just a professor.
The court approved this practice because the ban on gender discrimination does not force the employer to set salaries that differ from the labor market and the earnings situation.
The European Court of Justice has also recognized that, for example, the lack of applicants for a job and the need to offer them an incentive through a higher salary can constitute an objectively justified economic reason for the difference in pay for the jobs in question.
In other words, you simply don’t get top male footballers for the salary of a female footballer. Of course, all of this could change. The Commission currently has a draft directive on pay transparency (COM(2021) 93 final). If that actually becomes a guideline, quite a few things would probably change for German law.
One of the key elements of the draft is the obligation for Member States to take the necessary measures to ensure that tools or methods are established by which the value of work can be assessed.
The tools or methods must make it possible, with regard to the value of work, “to assess whether workers are in a are in a comparable situation”.
“They must not contain or be based on criteria that are directly or indirectly related to the gender of the employee.” The added value does not appear here – and it may depend on gender. The federal government should therefore work towards an amendment to the draft directive.
Protection against discrimination must be taken seriously and consistently enforced. However, where there is no gender discrimination, the appropriate instruments are out of place. However, applying them here carries the risk of creating points of attack that discredit a legitimate thing. That should be prevented.
Gregor Thüsing is Director of the Institute for Labor Law and Social Security Law at the University of Bonn.