Anyone who believes that at least one thing is clear in court, namely whether you have won or lost, has never had to deal with chamber decisions of the Federal Constitutional Court. This Tuesday, a chamber of the First Senate heard the constitutional complaint from Birte Meier rejected, that is, the ZDF reporter who has been fighting cleverly and fearlessly for years to be paid the same as her male colleagues. The court found that your constitutional complaint was inadmissible and would therefore not be accepted for a decision. That sounds like a maximum defeat. In truth, however, the decision conceals half a victory.
The “Frontal 21” journalist, who is moving to RTL this summer, has come a long way through the courts. As early as 2015, she – a recognized investigative journalist – had researched that she earned less than her male colleagues. But her lawsuit at the Berlin Labor Court failed. In 2017, however, the Pay Transparency Act came into force, with the help of which women can obtain information about the pay of men in comparable positions in the company. That should be the tool to make the gender pay gap visible – and to close it if possible.
But even the new law didn’t help her at first. The state labor court did not even consider Birte Meier to be an employee, since she was employed as a so-called “permanent freelancer”. However, the new law does not apply to the self-employed. In addition, the court wanted to ask her to prove that she was only paid less because of her gender. In other words, the court set up hurdles that are almost impossible to overcome.
The company must explain why a salary difference should have nothing to do with gender
The first breakthrough followed in 2020. The Federal Labor Court (BAG) corrected the lower instance and granted Birte Meier a right to information about the earnings of male colleagues with comparable work. Lo and behold, the information confirmed the plaintiff’s suspicion: the average salary of comparable male colleagues – the so-called median value – was 800 euros a month more than her salary.
The following year, the BAG finally made a fundamental judgment in another case – a department head from Lower Saxony had complained – that is of great relevance for all equal pay lawsuits. This is because it turns the tables: If such a disclosure claim reveals that a woman is paid significantly below the salary level of comparable men, then it is up to the company to explain why the difference should have nothing to do with gender. The burden of proof lies with the company, and that is an invaluable advantage for plaintiffs in such a process. If the company cannot come up with a convincing argument as to why it pays a woman less than men in comparable jobs, then it loses the case.
When the case was due for a decision in Karlsruhe, a lot had already been clarified, both the payment imbalance and the rules on the burden of proof. In other words, it’s time to ignite the second stage of such lawsuits – the claim for back pay. That is exactly what the Federal Constitutional Court more or less clearly recommends. The plaintiff could “put forward a claim for payment, which in any case would not obviously be hopeless from the outset”. Because the legal details have now been clarified. “This means that the prerequisites for a reversal of the burden of proof are met,” writes the court. “The claim for payment could therefore be successful. In any case, it is not apparent from the statements that there are other reasons to the contrary.”
The lawsuit, which Karlsruhe considers promising, was brought by Birte Meier’s lawyers more than six months ago at the Berlin Labor Court. The Society for Freedom Rights (GFF), which supports the lawsuit, therefore considers the words from Karlsruhe to be a fairly positive signal. “The Federal Constitutional Court considers your renewed lawsuit for equal pay to be promising; this is a clear sign to the labor courts,” said Nora Markard, board member of the GFF.
And why didn’t Karlsruhe make the decision itself? It has to do with the division of labour. The Federal Constitutional Court decides on the Basic Law, for example on the sentence “Men and women have equal rights”. But who ultimately has to pay how much to whom and what complicated rules on the burden of proof should look like – that’s a matter for the labor courts. There may still be a few procedural pitfalls on the way to Birte Meier’s final victory. But with the recommendation from Karlsruhe, things are looking pretty good.