Pay for women: Equal pay is not a matter of negotiation

Women are entitled to the same pay as their male colleagues. This also applies – when men have negotiated higher salaries. This was decided by the Federal Labor Court in a landmark judgment.

When hiring men and women, employers must pay the same wages for the same work. The Federal Labor Court in Erfurt ruled that even if male applicants enforce higher salary demands through negotiation skills, a female applicant should not be paid less for her new job. Otherwise, unequal pay indicates prohibited gender discrimination.

1000 euros less for the same work

An employee of a metal company in Meissen near Dresden had complained. At the beginning of the employment relationship in March 2017, she was offered 3,500 euros a month during the trial period. From November, a performance-related fee should also be paid. The woman agreed. She later discovered that two male colleagues had significantly higher salaries than her. A colleague who was hired three months earlier and did the same sales job at the company earned around 1000 euros more during the probationary period.

After the introduction of a collective agreement, the salary difference was still around 500 euros. The 44-year-old from Dresden saw herself as disadvantaged because of her gender and also demanded higher remuneration and a wage supplement.

The employer, on the other hand, justified the difference with the man’s better negotiating skills. Both were initially offered the same salary, the man asked for more in order to sign the employment contract. He should also replace a manager. The employer referred to the principle of freedom of contract in the case of the different pay – and was still successful in the lower courts – at the labor and state labor court in Saxony.

Gender-Based Discrimination

The Federal Labor Court, on the other hand, did not accept the company’s arguments. It awarded the woman 14,500 euros for lost wages and also discrimination compensation of 2,000 euros. Her employer “disadvantaged the plaintiff because of her gender,” said presiding judge Anja Schlewing.

If women and men are paid differently for the same work, as in the case under discussion, this justifies the presumption of discrimination based on gender. According to Schlewing, the employer could not refute this assumption by saying that the man had negotiated better or was in prospect for a management job. The federal judges overturned the judgments of the lower courts in Saxony in large parts.

The woman’s lawyers spoke of a milestone and hope for momentum in the dispute over equal wages and salaries for women and men in Germany. In 2022, according to the Federal Statistical Office, the gender-specific earnings gap was 18 percent.

Az.: 8 AZR 450/21