A Snapshot of Indirect Discrimination
Yesterday the CJEU said the Greek government indirectly discriminated against women by imposing a minimum height requirement on applicants to the annual competition for places at it’s police and firefighting academies. The minimum height requirement was 1.70 metres without shoes. The case is worth looking at because it’s a good example of the law against indirect discrimination in action; something which often causes difficulties.
Maria-Eleni Kalliri applied to the police station in Vrachti to enter the competition for places at the Police Academy for the academic year 2007-8. She was refused because she was only 1.68 metres tall and she challenged this on the ground that the rule is inconsistent with the equality principle.
The Greek government argued the purpose of its rule is to enable the effective accomplishment of the tasks undertaken by its police force and a minimum height is a necessary physical attribute.
The Court agreed that applicants were treated identically so there was no direct discrimination. But it went on to observe that it has consistently held there will be indirect discrimination where a national rule, albeit formulated in neutral terms, works to the disadvantage of far more women than men. It is satisfied that a much larger number of women than men are under the height of 1.70 metres so women are clearly disadvantaged in the competition for places at the Greek Police Academy. So the rule is indirect discrimination but is it objectively justified by a legitimate aim and is the achievement of that aim appropriate and necessary? The court said it’s not justified.
In reaching its decision the Court accepted that the performance by the police of their duties require particular physical attributes, particularly concerning the arrest of offenders and on crime prevention patrols. However it also identified functions where this is not the case, such as providing general assistance to the public and traffic control. Crucially it went on to say that even if all police work requires a particular physical attribute it doesn’t necessarily follow that shorter people lack that attribute. In this context it noted that the Greek armed forces, port police and coast guard have different height requirements for men and women with the bar for women set at 1.60 metres. It also noted that until 2003 the Greek police had different height requirements for men and women; 1.65 metres for women compared with 1.70 metres for men.
The court advised the Greek government to select candidates for the police academy according to tests designed to assess their physical ability, so as always the moral of the tale is to avoid making stereotypical assumptions. Of course it’s easy to write that but we know it can be difficult to achieve in practice. It requires time and space to stand back and take a 360˚ view of the way in which the best intentioned practices are perceived to unfold – and that’s where an external view from one of us can be so valuable.