Frequently Asked Questions on equal treatment of the genders in working life
The gender pay gap may be calculated in a number of very different ways. In principle, a distinction is made between the “adjusted” and “unadjusted” pay gap.
The “unadjusted” wage gap measures payment on the basis of the average gross hourly wage for all men and women in gainful employment. In 2019, this gender pay gap was approximately 20 percent.
Approximately three-quarters of this pay gap can be explained by social structures, for example, by the fact that women often work in less well-paid occupations or less often hold management positions. Here, too, discrimination may come into play, for example, when women are refused promotion to management positions or female-dominated occupations are less well paid than male-dominated occupations.
Up to six percent of the gender pay gap cannot be explained by reference to structures. This is the so-called “unexplained remainder” or the “adjusted” pay gap. This value shows that on average, women earn less than men, even when they are in comparable positions, have comparable work experience and are of a comparable age. This may amount to direct or indirect discrimination on the grounds of gender.
There are many different reasons. Men continue to hold management positions more frequently, while women more frequently work part-time and take more time out from their occupation for the family. Women more frequently work in smaller companies, some of which pay lower wages and/or are not bound by collective agreements. Women frequently work in sectors that are less well paid than “typical men’s” sectors. In some cases, too, they negotiate wages less well than men, particularly when other aspects of work, such as flexible working times, are more important.
Another frequent reason is discrimination in assessing the value of work. As a general rule, work in male-dominated sectors, for example involving machines, finances or responsibility for human resources, is valued and paid more highly than work in female-dominated sectors. Physical and psychological stress in typical “women’s” occupations is often undervalued or overlooked.
For a long time, policies in West Germany, at least, encouraged mothers to take a break from work, unlike in many other countries. Added to this, child-care facilities continue to be inadequate and not very flexible.
Part-time work is more widespread among women in Germany than in other European Union countries: 47 percent of all women in gainful employment work part-time. Around half of women state that this is due to family obligations. Of men in gainful employment, only 11 percent work part-time, and only 9 percent of them state family as the reason for their reduced working hours (situation as of 2018).
In Germany, there is also a particularly close correlation between part-time and low-wage jobs. These, too, are dominated by women. The number of low-paid jobs has grown in recent years and influences the pay gap.
The number of years of experience and length of service with a company have a major impact on the gender pay gap in Germany. Raising and caring for children continues to be done mainly by women, with corresponding effects on their pay.
In the long term, the pay gap has a major impact on old-age pensions. The “gender pension gap“ is approximately 60 per cent – a consequence of the fact that many women who are now pensioners had no or low earnings. This gap will become smaller on account of the better education and more frequent gainful employment of women. However, the fact remains that women have shorter earning biographies and, on average, their pension contributions are lower. On average, that means that they are at a higher risk of poverty in Germany than men.
That also has a direct impact on companies. Pay inequality impairs the atmosphere and lowers work motivation.
The parties to a collective wage agreement have an obligation to draw up non-discriminatory agreements. Nevertheless, it is possible for collective wage agreements to infringe the General Act on Equal Treatment (in German: AGG). In particular, there are indirect disadvantages on the grounds of the characteristics protected under the General Act on Equal Treatment (in German: AGG). An indirect disadvantage may be when remuneration is linked with apparently neutral criteria, but women are particularly disadvantaged without an objectively justified reason. An example of this is when part-time staff are put at a financial disadvantage when such a disadvantage cannot be objectively justified.
The analysis “Equal pay for work of equal value?“ uses the analysis instrument eg-check.de to evaluate the pay schedule of the collective agreement of the Länder as an example, showing which provisions in the pay schedule may lead to indirect discrimination against women with regard to pay.
Not necessarily. The amount of pay depends on a number of different criteria. The decisive factors are the supply of and demand for particular services and the specific performance requirements of the workplace. Qualifications only play a role if they are needed to do the specific job. The requirements of the specific job are the decisive factor. Under the law of the market, a warehouse worker with a university degree does not generally earn more than a colleague who left school with basic school-leaving qualifications if the work required is the same in both cases.
Wage increases with increasing age are also not generally justified. Under the General Act on Equal Treatment, discrimination on grounds of age is not permissible. Age-specific pay amounts to direct discrimination and in most cases cannot be justified. However, it is permissible and customary to reward professional experience gained over years of service. Such rules can be indirectly discriminatory, however, as older employees can usually look back on more years of service.
The European Parental Leave Directive (2010/18/EU) clearly prohibits discrimination against women returning to work after parental leave. Under this Directive, no occupational disadvantages may arise from parental leave. An employee returning to work after taking parental leave has a right to the same salary as before taking parental leave.
In practice, however, this principle is not always observed. The provision of section 17 III 3 of the collective agreement for the public service (Tarifvertrag für den öffentlichen Dienst, TVöD) regarding the German Federation of Municipal Employers' Associations (Vereinigung der kommunalen Arbeitgeberverbände, VKA), for example, is problematic. Under this provision, a person taking parental leave for more than five years is downgraded on the salary scale. This provision is presumably in contravention of European law. Shortly after the collective agreement for the public service entered into force, however, the Federal Ministry of the Interior decided that this collective agreement provision should not be applied to the bargaining area of the Federation.
Nevertheless, parental leave may still have an indirect disadvantageous effect on salary. In a ruling of 27 January 2011 (file reference 6 AZR 526/06), the Federal Labour Court ruled that it was permissible to reward professional experience by upgrading within a salary group in the public service sector. Since no professional experience is gained during parental leave, it may be permissible to provisionally suspend promotions.
In some companies, there are confidentiality clauses to ensure that employees do not talk about their earnings. But even without such clauses, it is frequently not customary for colleagues to discuss their income. More transparency could ensure appropriate comparison of incomes here and reveal inequalities.
In a judgment of 21 October 2009 (file reference 2 Sa 237/09), the Regional Labour Court of Mecklenburg-Western Pomerania declared a confidentiality clause to that effect to be invalid. It ruled that claims for infringement of the principle of equal treatment in the context of wages would be prevented by this clause. In short, if employees are not allowed to talk to their colleagues about their salaries, they can never find out whether they are worse paid.
The judgment is an individual decision, however. Ultimately, it always depends on the way the clause is framed in a specific individual case.
Before you talk to your colleagues about your salary, you should find out whether there is a confidentiality clause. If there is, you should seek legal advice.
Provisions and agreements that infringe the ban on discrimination contained in the General Act on Equal Treatment (in German: AGG) are invalid. In such cases, you can demand to be paid the same as your better-paid male colleagues doing a comparable job. Often, it is also possible to claim damages for retrospective wage compensation. You are required to claim damages from your employer in writing within two months. This period commences from the time you become aware of the discrimination.
Before you take legal steps against pay discrimination, you should ask to talk to your employer or discuss your steps with the works or staff council or with your trade union. They can advise you and have a right to take legal action in cases where there has been a gross infringement of the principle of equal pay. The Federal Anti-Discrimination Agency can also advise you and try to reach an amicable settlement.
Jobs traditionally performed mainly by women are often less highly valued and less well paid. According to scientific analyses, one main reason for this is that in evaluating work, women’s professions are traditionally considered less difficult than men’s professions. To date, remuneration has only to a very limited extent taken into account the psychosocial demands of female-dominated professions, for example in education and health care. This may be due to gender discrimination. Thus, non-discriminatory evaluation systems are urgently needed to take into account the specific burdens involved in typical “women’s jobs”.
Other reasons are that, as a rule, collective wage agreements more strongly represent the interests of male employees. Men are more frequently organised in trade unions, for example. Nearly all the negotiators are men; questions of equality are often not a priority. Trade unions sometimes have collective wage agreement guidelines to prevent bargaining committees consisting exclusively of men. Such guidelines provide for the numbers of women on the committee to be proportionate to the number of women covered by the collective agreement, for example.
First, you can get an idea of what your earnings should be on average (for example at www.frauenlohnspiegel.de). Your works council can also provide assistance. It has a right to view wage and salary lists, but not the salaries of senior employees. Only the works council has this viewing right, however. Thus, it may not simply pass on the information it has obtained to individual employees. What it can do, however, is check whether the company has infringed the principle of equal pay. If it establishes that there has been a gross infringement, it can make use of its right to take legal action.
Employers have the possibility to use publicly accessible wage assessment procedures such as eg-check.de and Logib-D to reveal discrimination. Draw attention to this wage measurement procedure within your company and inform the works council or trade union.
Since 6 January 2018, there has also been an individual right to verify compliance with the principle of equal pay under the Transparency in Wage Structures Act (in German: Entgelttransparenzgesetz, EntgTranspG). Employees must name a similar activity or one of equal value (“reference activity”) concerning which employers are to provide information. Employers must then provide information on the remuneration of employees of the other gender, on the criteria and procedures for deciding on pay, as well as on up to two variable remuneration components. There is no requirement to provide information on a particular person’s salary, however. Thus, the reference remuneration is to be given only as the full-time equivalent, projected statistical median (the middle value in a list of salaries), and there is no right for this to be done if there are less than six employees in the respective reference group. In the case of employers bound by and applying collective wage agreements, such requests for information are to be addressed to the works council. In all other cases, employees can address the employer.
The entitlement to obtain information is applicable to all companies with more than 200 employees.
The Court of Justice of the European Union has clarified that in accordance with the normal rules of evidence, it is, in principle, for the employee to prove that a difference of pay constitutes a breach of the principle of equal pay (judgment of 27 June 2011, file reference C-427/11 in the Kenny decision).
A female employee must therefore provide evidence that the employer pays her less than her male colleagues with whom a comparison is drawn and that they actually perform the same or equivalent work.
If such evidence is successfully provided, the employer has an obligation to provide evidence that this does not constitute a breach of the principle of equal pay for men and women.
The ban on discrimination also applies in such cases. Unjustified direct or indirect discrimination is not only unlawful in connection with gender, but also with disability, ethnic origin, age, religion or sexual identity. Provisions and agreements that violate this ban on discrimination are invalid. A provision to this effect is contained in the Transparency in Wage Structures Act, which also declares agreements that breach the principle of equal pay to be invalid.
Companies that observe the principle of equal pay for their employees foster a good working atmosphere. Women who feel that their work is valued just as much as that of their male colleagues are more motivated. They tend to be more willing to commit themselves to the company. In the labour market, this can enhance a company’s reputation as a credible and attractive enterprise, thereby attracting particularly well-qualified and motivated employees – a clear competitive advantage.