A department head is suing for equal pay: the same pay as her colleagues. That’s a good sign – but it shouldn’t be down to the courage of individual women.
It is an appointment that many were eagerly awaiting: A department head at Daimler Truck AG has sued for equal pay, and the appeal process is now taking place before the Stuttgart State Labor Court. It’s about equal pay, the legal right to equal pay for equal work. And it’s a lot of money: last year, the first instance awarded the plaintiff a five-figure amount for lost wages over the past few years. She earns less than her male colleagues since she returned from parental leave. In the appeal process she was only partially right.
The department head is not the only woman who has dared to sue in recent years. I know this because I too have dared to do it and am in contact with many other women. In other countries, such as the USA or Great Britain, employees have been confidently claiming lost wages for decades. But unlike there, the legislature in this country has not clearly regulated what procedure applies in court to enforce the right to equal pay in reality: Who bears the burden of proof? What excuses can an employer get away with?
The right to equal pay for equal work only existed on paper. Astonishing, because the EU has obliged the member states to do this since 1957. And the European Court of Justice made a number of fundamental judgments that regulate the procedure in favor of women. But the Federal Republic failed to implement any of this.
“Welcome to the Middle Ages”
Those who still dared to go to court had to contend with absurd judges and bizarre verdicts. In my own trial it went like this: women would earn less because they became pregnant, my judge speculated in the first instance. “Welcome to the Middle Ages!” A friend in the audience protested and narrowly avoided a fine. “Rest in the cheap seats,” the man appointed by the state to judge my fundamental right had lorded it over the women on the wooden benches: “It’s not that easy, ladies, no matter how loudly they moan!”
That was 2016.
Things are going a little better today. Admittedly, going to court is still difficult: who wants to sue their employer? But at least the commercial law firms are rethinking. They warn their clients to urgently review their wage structures and discreetly adjust them if necessary. The risk of image damage is high.
“Female managers are also not allowed to earn as they see fit”
The non-profit Society for Freedom Rights (GFF) supports many women who want to sue – including the head of the department in Stuttgart. “Female managers are also not allowed to earn as they see fit. But at Daimler there are no objective criteria for the different salaries,” says Sarah Lincoln from the GFF. When asked, Daimler Truck points out that individual pay in the company is based on objective criteria, such as the respective level and the difficulty of the task. The female employees also found out that they earn less from an internal transparency dashboard, which informs employees about what comparable colleagues of the opposite sex earn on average.
Lincoln reports that inquiries about equal pay are increasing. More and more women apparently want to defend themselves. The process is not only ongoing at Daimler, an Apple manager has also recently filed a lawsuit.
How come?
The pay transparency law, with which the then Minister for Women Manuela Schwesig (SPD) tried to score points in 2017, initially failed in the practical test. But then the Federal Labor Court followed up.
Federal Labor Court rules in favor of equal pay
The first precedent judgment was made in 2020: Yes, of course, the court in Erfurt said: European law also applies in Germany. The Pay Transparency Act should be interpreted beyond the wording, in the spirit of progressive European principles. I was the plaintiff at the time, and the verdict was the first success after a five-year trial.
In 2021, Gabriele Gamroth-Günther created the next sensation in Erfurt: Since then, women no longer have to prove that they earn less because of their gender. Instead, employers must be able to give good reasons if they pay different wages for comparable jobs. The reversal of the burden of proof is reversed.
Susanne Dumas achieved her next success in 2023. Since then, superiors can no longer argue that a higher-earning man negotiated better. The stupidest excuse for women’s pay-cutting had been given up.
Fundamental judgments for all women
Every single woman who makes it to the higher courts creates legal security for everyone else. The Daimler proceedings are not just about justice and the plaintiff’s account balance. But also the question of whether a woman can only sue for the so-called median, i.e. the average salary of comparable male colleagues – or for a specific salary of a specific colleague. This is possible under European law. In practice, this can mean a lot of money.
The state labor court only partially agreed with the plaintiff. She will receive 130,000 of the approximately 420,000 euros claimed. In principle, she is only entitled to the difference to the media content, not to a specific colleague.
The Pay Transparency Act requires larger companies to report the so-called median, i.e. the average salary of at least six comparable colleagues of the opposite sex. However, with this median, employers can cheat by sorting the comparison group appropriately. “We are arguing here about the important clarification that women do not have to settle for mediocrity when it comes to salaries,” says Sarah Lincoln from the GFF.
German politics is failing women
The federal government could, with the stroke of a pen, regulate everything that individual plaintiffs are laboriously clarifying in the courts. But she doesn’t. Other countries have long since made employers responsible instead of women.
The EU recently ignited a kind of equal pay turbo. The so-called wage transparency directive is tough: companies have to provide information about starting and average salaries. Associations should be able to sue instead of individual women. Dissuasive sanctions are in place for companies that continue to discriminate. Germany must implement the directive by June 2026. So the government would have to start doing this now, otherwise it will probably no longer work because of the shortened election year.
“Will the traffic light introduce such a law, and if so, when?” I would like to know from the Federal Ministry for Women’s Affairs, BMFSFJ for short. Its boss, Minister Lisa Paus from the Greens, called the 2022 Pay Transparency Act a “toothless tiger”. One would think that there is an urgent need for action, especially since the coalition agreement also promises improvements in terms of equal pay, which women are still waiting in vain for today.
But the ministry’s answer remains vague: “The BMFSFJ aims to implement the directive that is effective for employees, has little bureaucracy and is practical for companies.” The spokeswoman does not provide an answer to the question of when this should happen.
So it will probably continue to depend on individual women, supported by a non-profit organization, so that European fundamental rights also apply to women in Germany. Until 2026, then there is a threat of EU infringement proceedings.
Source: Stern
