EU court rules for women
Sex discrimination at the police school?
In the recent case of Ypourgos Ethnikis Pedias kai Thriskevmaton v. Kalliri, the European Court of Justice (ECJ) held that the requirement for candidates for the Greek police academy to be at least 1.70 meters tall amounted to indirect sex discrimination which could not be objectively justified.
The ECJ is the EU’s highest legal authority, tasked with interpreting and enforcing the rules of the single market and ensuring its equal application across all EU Member States. National courts refer to the ECJ for legal advice regarding compatibility with EU law. Although the ECJ is not directly responsible for making the ruling at the national level, the national courts must still execute the judgment in accordance with the ECJ’s reasoning.
Greece imposed minimum height requirements for entry to the national police academy of 1.70 meters (5 feet 7 inches). In 2007, Marie-Eleni Kalliri was denied enrolment to the police academy in Greece for being shorter than 1.70 meters. She appealed against the decision at the Greek Court of Appeal in Athens, with the claim that she had suffered discrimination on the basis of sex.
The question that was referred to the ECJ was whether EU law precluded a national law which lays down a minimum height requirement for all candidates, both male and female, for the competition for entry into the police school.
Although it is doubtful as to whether any statistics actually exist, clearly a much larger number of women than men are under the height of 1.70 meters. The requirement to be at least 1.70 meters tall is a condition or requirement imposed by the employer, which have a disproportionate impact on a particular group of potential applicants, i.e. women. It appears, therefore, on the face of it that the height requirement imposed by Greece to be an act of indirect discrimination, as women are clearly disadvantaged in the competition for places at the Greek Police Academy.
Could health and safety reasons justify indirect sex discrimination?
However, indirect discrimination can be justified. The justification here is that the minimum height requirement has been entirely imposed for health and safety reasons. The ECJ noted that “While it is true that certain police functions may require the use of physical force requiring a particular physical aptitude, the fact remains that other functions, such as providing assistance to citizens or traffic control, do not clearly require the use of significant physical force.”
The ECJ continued by saying that the requirement imposed by Greece would not constitute discrimination if there was an objective reason for it, like the proper functioning of police services. Health and safety reasons could not justify the minimum height requirement simply on the basis of it being either appropriate or necessary for the objective that it purported to achieve. While the ECJ acknowledged that it is important for police to be physically fit, being physically fit is not necessarily linked with height.
In order to ensure that police officers had the necessary physical capability, specific tests could be used that are less disadvantageous to women, for example a pre-selection of candidates allowing their physical ability to be assessed.
Consequently, the ECJ ruled that requiring the same minimum height standard for both female and male police officers “constitutes indirect sex discrimination since it works to the disadvantage of far more women than men.”
Word of advice
The ECJ ruling is now applicable across the bloc. The moral of this story is to avoid making stereotypical assumptions. Your recruitment process must work within the law so as not to unfairly advantage or disadvantage certain candidates. You can discriminate indirectly by offering working conditions or rules that disadvantage one group of people more than another. These conditions are unlawful unless they can be justified, and if a recruitment decision was challenged, the onus would rest on you to justify why that person was not appointed.
Take a critical look at your recruitment process to make sure that your criteria and requirements for employees to carry out certain roles, are non-discriminatory and more importantly – necessary to the job. Working within the law also helps you to recruit and select effectively.
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Agnes Biel, Paralegal