This article annotates the German Federal Labour Court's final judgment in the case referred to the ECJ as "Kalanke case". The underlying legislation established a so-called "women's quota", which actually was a rule to prefer women if equally qualified for positions where they were underrepresented. The ECJ held that such a preference rule must be accompanied by a mitigating clause allowing the employer to prefer a man if special circumstances should prevail over the aim of furthering gender equality. The Federal Labour Court held that the circumstances the claimant Kalanke wanted to rely on were not such that they should prevail over gender equality. These circumstances were his higher age, the fact that he provided for a stay home mum and 2 children, and the fact that he had been with the employer for a longer time than his female competitor. The case note makes the point that a) the preference rule is legitimate form of positive action, whose effectiveness would be compromised if indirectly discriminatory criteria such as the one relied upon by the claimant would constitute special circumstances. She also makes the point that adhering to such selection criteria would actually violate the EU law ban on sex discrimination.
|Translated title of the contribution||Annotation to Federal Labour Court (BAG) 5 March 1996 case no 1 AZR 590/92 (A)|
|Number of pages||15|
|Publication status||Published - 1997|