The ECJ ruled in a judgment on 18 October that a uniform minimum size as a requirement for men and women to get a job is inadmissible (docket number C-409/16). A Greek court had asked the ECJ whether “a height (in the case of men and women) of at least 1.70m”, is compatible with Directive 76/207/EEC which prohibits any indirect discrimination on grounds of sex as regards access to employment, vocational training and promotion, and working conditions.
“In the present case, the referring court itself found in its decision that a much larger number of women than men are of a height of less than 1.70m, such that, by the application of that law, women are very clearly at a disadvantage compared with men. It follows that the law at issue in the main proceedings constitutes indirect discrimination.”
Such an unequal treatment may be permitted if it is justified. This is the case if the unequal treatment is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary. (see for a similar situation our article about age limits).
In general the ECJ has already held that the concern to ensure the operational capacity and proper functioning of the police services constitutes a legitimate aim. However, the suitability and the necessity of such a regulation are questionable, it is questionable whether it is not possible to use milder actions to achieve the goal. The ECJ points to two critical points: First, there are also police tasks where no physical force is necessary and secondly, the correlation between body size and higher assertiveness is questionable. This is also recognized by the ECJ:
“In that regard, while it is true that the exercise of police functions involving the protection of persons and goods, the arrest and custody of offenders and the conduct of crime prevention patrols may require the use of physical force requiring a particular physical aptitude, the fact remains that certain police functions, such as providing assistance to citizens or traffic control, do not clearly require the use of significant physical force. Furthermore, even 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.”
The ECJ points in particular to lower minimum sizes for the greek army and coast guard. In this respect, a problem of coherence is again shown. Moreover, the Court emphasizes that other – more individual – selection criteria would allow a more precise and more specific differentiation.
Thus it shows again that special caution is required in case of unequal treatments. The existence of a legitimate goal does not automatically lead to justification. Rather, the concrete implementation must always be checked exactly.