CJEU in Kalliri: Solidifying Indirect Sex Discrimination
Does the European Council Directive 76/207 (as amended by Directive 2002/73), which implements the principle of equal treatment between men and women, preclude a national provision which makes admission of candidates into the police service subject to a minimum height requirement?
The CJEU in its judgement delivered on 18 October 2017 in the case of Ypourgos Esoterikon v Maria-Elleni Kalliri answered this question in the affirmative. It found that the Greek law, which stipulated a height requirement of 1.70 meters to enter into a competition for selection into the police service, constituted indirect discrimination against women. Under Article 2 of the Directive, indirect discrimination results from an apparently neutral provision, criterion or practice which puts persons of one sex at a particular disadvantage as compared with persons of the other sex, unless that provision, criterion or practice is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary. The Court referred to the evidence before the referring court that a far greater number of women than men were affected by the height requirement, putting women at a particular disadvantage as compared to men. Given the nature of the preliminary ruling, the Court agreed that although it was ultimately for the national court to determine if such indirect discrimination could actually be justified, it offered guidance for making that decision. In particular, the Court found that while the effective functioning of the police force was a legitimate aim to be pursued, the minimum height requirement had little to do with this aim and thus was not a suitable means for achieving the aim and went beyond what was necessary. The crux of the Court’s reasoning lies in paragraphs 38 and 39 where the Court found that neither could all of the police forces’ functions be said to use physical force nor can such physical force be attributed to a certain physical aptitude associated with a requirement like the present one. Further the Court suggested at paragraph 42 that if physical attributes were a requirement of the police forces then they needed to be tested through more surefire tests for physical aptitude which were also ‘less disadvantageous to women.’
Two things are notable. First, the Court had previously found for direct sex discrimination where women were considered unsuitable for handling firearms in the police services and the army. With the decision in Kalliri, the Court extends its reasoning to indirect cases where neutral factors like height disadvantage women from participating in the national security forces. Second, the Court fortifies the trend of raising the bar for justifications to pass the test of proportionality, thus developing its sex discrimination jurisprudence beyond its traditional equal pay and social security cases and into the field of equal opportunity and access to employment. The Court appears to suggest in Kalliri that there is something inherently problematic for neutral testing requirements like height, which adversely affect women. It thus moves away from its initial view on indirect sex discrimination as capable of being justified when based on factors unrelated to sex (Case 170/84 Bilka-Kaufhaus v Webers Von Hartz (1986), brought under Article 119 TFEU) by demanding justifications to not only be unrelated to sex but also to be narrowly tailored in terms of achieving legitimate aims through the most appropriate and necessary means. In this way, Kalliri demands a greater ‘fit’ between employment selection criteria and the aim for which they are instituted, thus tightening the proportionality test for sustaining indirect sex discrimination.