GFF supports a pay discrimination complaint. An award-winning journalist sued German national public TV broadcaster ZDF in 2015 after finding out she had been paid less than her male colleagues for many years, despite doing the same work, having comparable qualifications, and even being more experienced than several of her colleagues. Many indications, among them company documents, paint a clear picture of gender pay discrimination. ZDF put the plaintiff under pressure and stated contradictory reasons for the lower wage during the trial.
Nevertheless, the Berlin Labor Court dismissed the claim in December 2016. The next instance, the Regional Labor Court of Berlin-Brandenburg, dismissed the plaintiff’s appeal. Both courts ignored mandatory European law requirements on equal pay. A hearing before the Federal Labor Court will take place on June 25, 2020.
Systematic discrimination of women
When she filed her complaint, the journalist knew of several male colleagues in comparable positions in her team, the program Frontal21, who earned more than she did. This includes all her male colleagues who work as permanent full-time freelancers, like the plaintiff herself – even those less experienced than her. Other possible reasons such as length of service, training or performance could not explain the wage differences either.
Contrary to statements made by superiors, compensation was not based on fixed and transparent criteria. Rather, the renumeration of permanent freelancers was to a large extent freely negotiable. At Frontal21, this resulted in higher wages for male journalists. The discriminatory wage structures are embedded in a general culture of discrimination highlighted by ZDF’s internal Equality Reports and by the way the former Frontal21 editor-in-chief dealt with female staff members. For example, he repeatedly stated at office Christmas parties that women had no place in political journalism.
The ZDF journalist´s case is not an isolated incident. According to the German Federal Statistical Office, women earn on average 6% less than their male colleagues for the same job, with the same scope and qualifications. These findings already exclude factors such as part-time work, the over-representation of women in lower-paid sectors and similar factors. Overall, women in Germany earn on average 21% less than men.
EU law not implemented
Women are entitled to equal pay for equal and substantially similar work. This fundamental and human right is comprehensively enshrined in international and European law, in particular in Article 157 of the Treaty on the Functioning of the European Union TFEU. It also derives from Article 3 (2) and (3) of the German Basic Law and is guaranteed by the German General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz – AGG). By paying female staff less than their male colleagues, ZDF as a public law institution violates their right to equal pay.
Unfortunately, German courts so far have ignored European standards concerning equal pay. European regulations. According to the established case law of the Court of Justice of the European Union (CJEU), it is sufficient for the plaintiff to show that one male colleague earns more for equal or comparable work. The employer then has to justify this. The reversal of the burden of proof makes it easier for women to claim equal pay.
Courts in other European countries implement these CJEU requirements and thus enable successful equal pay lawsuits. The journalist Samira Ahmed, for instance, successfully sued the BBC in early 2020. For years she had earned much less than a comparable man. In court, the BBC had to prove why it paid the journalist less. The BBC did not succeed. The Supreme Court in Austria already ruled in 1998 that it is up to the employer to prove that a wage difference is not gender-specific. Women do not have to show a causal link. In Germany, on the contrary, a plaintiff must demonstrate that she earns less because she is female. That is much more difficult.
Pressure from employers and colleagues
Most women don’t complain about discriminatory wages, either because they do not know their male colleagues’ salaries or because they fear repression from their employer or colleagues. This was also experienced by the plaintiff.
After filing the complaint, she was put under pressure from various ZDF departments. For example, ZDF pointed out to her that long-standing labor law disputes can often lead to mutual burdens on the employment relationship. Shortly afterwards, the Frontal21 editor-in-chief spoke of “war” in the editorial office if the legal documents comparing the employees’ work were to become public. In the first hearing in 2016, the ZDF lawyer advised the plaintiff to terminate the employment relationship. German law prohibits such adverse action against a plaintiff.
Plaintiff demands adequate remuneration
The lawsuit has two legal objectives: Firstly, the plaintiff wants to know her male colleagues´salaries. Then, based on these figures, she wants to be paid equally. This procedure is necessary although the plaintiff already knows that several colleagues earn better than she does. However, a claim in Germany for correct payment and compensation for past underpayment must be precisely quantified.
In addition, the plaintiff demands information under the Pay Transparency Act which took effect in 2018. It entitles employees to information on the median of comparable colleagues´salaries. However, ZDF refused to provide the information.
Courts ignore reversal of the burden of proof
The claim was initially dismissed at first instance. In doing so, the Berlin Labor Court largely misjudged or disregarded the actual facts of the case. The Berlin-Brandenburg Regional Labor Court dismissed the action in its judgment of February 5, 2019. The Regional Labor Court assumed in the plaintiff’s favor that her male colleagues performed the same or comparable work. However, the court held that the plaintiff should also have demonstrated that the differences in pay were based on her gender. In doing so, the court ignores CJEU case law. CJEU regularly reverses the burden of proof if at least one man earns more for comparable work. Then, it is up to the employer to exonerate himself from the suspicion of discrimination. With this burden of proof reversal the CJEU takes into account that it will hardly ever be possible for the female employee concerned to prove that she is being paid less due to gender.
ZDF repeatedly presented new and in part contradictory explanations for the plaintiff´s lower pay before the courts: At times, professional experience, seniority or a degree in journalism were supposed to justify men´s higher remuneration, then wages were said to have been negotiable to a large extent. These varying explanations indicate that ZDF is unsure about its own renumeration criteria, thus creating a gateway for discrimination.
The struggle for equal pay continues
The plaintiff has filed an appeal against part of the ruling of the Berlin-Brandenburg Regional Labor Court before the Federal Labor Court in Erfurt. Since the Regional Labor Court had to decide on new legal issues regarding the Pay Transparency Act, it allowed the appeal regarding these aspects. In particular, the appeal concerns the question whether permanent freelancers are also covered by the Pay Transparency Act and can claim wage transparency. The proceedings constitute a precedent for the new Pay Transparency Act, which could remedy one of its many shortcomings.
With regard to the plaintiff´s equal pay claim, the Regional Labor Court did not allow the appeal. The complaint against this was rejected by the Federal Labor Court. The plaintiff has now filed a constitutional complaint with the Federal Constitutional Court. The plaintiff argues that the courts deviated from established case law of the CJEU without prior submitting the relevant questions to the CJEU. The complaint is also based on a violation of fundamental rights under Article 23 of the Charter of Fundamental Rights of the EU and Article 157 TFEU.
Strategic litigation against discrimination
GFF defends constitutional and human rights. One focus is on the protection against discrimination. Wage justice is an important field in which equality is still not sufficiently implemented. To ensure that the right to equal pay is not just written on paper, GFF supports this case. The plaintiff is represented by a lawyer, GFF advises and supports her in strategic litigation.
- The file numbers of the proceedings before the Federal Labor Court are 8 AZR 145/19 (revision according to the Pay Transparency Act) and 9 AZN 504/19 (non-admission complaint).
- The file number of the complaint before the Federal Constitutional Court is AR 5979/19.