Is gender equality at work justified

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Article 3 (2) and (3) GG, Sections 5, 7, 8 AGG, Sections 15 (2), 43 (2), 45 (1), 75 (1), 80 (1), no.2a, Abs. 2, 92 BetrVG, § 8 Abs. 1 SGB III, § 3, 4, 10, 13, 14, 15, 17, 18 EntgTransG

term

Measures for Alignment the opportunities and living conditions of women and men.

Explanations

Goal: equal opportunities

The concept of gender equality encompasses more than equal treatment for men and women. Because of their different life situations and interests, the sexes are affected differently by decisions and processes in everyday life. In professional life, it is mainly women who are still disadvantaged. The aim of equality is to remove existing barriers and support measures to ensure equal opportunities for both genders. The United Nations have set this goal in the form of so-called “gender mainstreaming” and obliged the member states to work towards eliminating existing disadvantages. Gender mainstreaming is a strategy that aims to ensure that equality is implemented as a state task, especially by public administration employees, and implemented through systematic consideration of the realities of life of men and women when planning, implementing and evaluating their own actions. The European Union is also committed to gender equality:

  • “In all its activities, the Union works to eliminate inequalities and to promote equality between men and women” (Article 8 of the Treaty on the Functioning of the European Union).
  • “Equality between men and women must be ensured in all areas, including employment, work and pay” (Section 23 Charter of Fundamental Rights of the EU).

The Basic Law obliges the federal government to actually enforce equality between women and men: "The state promotes the actual enforcement of equality between women and men and works towards the elimination of existing disadvantages" (Article 3 (2) of the Basic Law). Their implementation for the federal public service is ordered by the Federal Equal Opportunities Act (BGleiG). The equality regulations for civil servants and employees of the states regulate state equality laws.

Equality in employment

There are no comparable legal regulations for private companies. The requirement of Article 3 (2) of the Basic Law for gender equality is reflected in some labor law provisions, the provisions of which in practice amount to compensatory measures in favor of disadvantaged women. In order to improve the professional situation of women through active employment promotion, efforts must be made to eliminate existing disadvantages and to overcome the gender-specific training and labor market (Section 8 (1) SGB III). The principle of equal treatment under labor law prohibits discrimination based on gender. The General Equal Treatment Act (AGG) explicitly prohibits both direct and indirect discrimination against employees for this reason (Section 7 Paragraph 1 in conjunction with Section 3 Paragraph 1 and 2 AGG). The employer must formulate advertisements for filling vacancies in a gender-neutral manner (Section 11 AGG).

Equality in pay

In the case of the same or equivalent work, there is a direct or indirect disadvantage because of the sex with regard to all Pay components and pay conditions forbidden. A immediate wage disadvantage occurs when an employee receives, because of the sex, for the same or equivalent work a lower pay than an employee of the respective opposite sex receives, has received or would receive. There is also an immediate disadvantage in the case of lower pay due to a woman Pregnancy or motherhood in front. A indirect wage disadvantage occurs when apparently neutral regulations, criteria or procedures can discriminate against employees in terms of pay in a particular way because of their gender compared to employees of the opposite sex. An indirect wage disadvantage is exceptionally permittedif this is appropriate and necessary in particular due to criteria related to the labor market, performance and work results (Section 3 EntgTranspG). Female and male employees practice one same work if they carry out an identical or similar activity at different workplaces or one after the other at the same workplace. Female and male employees practice one equivalent work if they can be viewed as being in a comparable situation based on a set of factors (Section 4 EntgTranspG).

To Verification Employees have a right to information about compliance with the equal pay principle. For this purpose, the employees have the same or equivalent job in a reasonable manner (Comparative activity). You can request information on the average gross monthly wage and up to two individual wage components. The request for information has in Text form to take place (§ 10 Abs. 1 & 2 EntgTranspG). Employers with typically more than 500 employees are encouraged to use operational test procedures to regularly review their remuneration regulations and the various remuneration components paid as well as their application for compliance with the principle of equal pay within the meaning of this Act (Section 17 (1) sentence 1 EntgTranspG). If a company test procedure is carried out, this is the responsibility of the employer with the participation of the works council. (Section 17 (2) EntgTranspG)

Allowed differential treatment

Unequal treatment that is linked to gender is only compatible with the principle of equality between women and men insofar as it is absolutely necessary to solve problems that by their nature can only occur either with men or with women (BVerfG v. January 28, 1992 - 1 BvR 1025/82). It is permissible if this reason represents an essential and decisive professional requirement due to the type of activity to be carried out or the conditions of its exercise, provided the purpose is lawful and the requirements are appropriate (Section 8 (1) AGG). An essential and decisive professional requirement exists when the work cannot be carried out at all or cannot be carried out properly by an employee of a certain gender and this qualification disadvantage is due to biological reasons. For example, working in a girls' boarding school, which is also associated with night shifts, is an essential and decisive requirement for the position to be filled by a woman (BAG May 28, 2009 - 8 AZR 536/08). A gender-specific job advertisement is also justified if a municipality restricts the selection of applicants to women when filling the position of the municipal equal opportunities officer, because one focus of the activities in project and advisory services is for women in problematic situations whose success is jeopardized if the position is filled by a man (BAG of March 18, 2010 - 8 AZR 77/09). Different treatment is also permissible if existing disadvantages due to gender are to be prevented or compensated for by suitable and appropriate measures (positive measures, Section 5 AGG).

Relation to works council work

Gender quota in the works council

As a contribution to realizing actual equality between men and women with regard to access to employment as well as with regard to working conditions, the members of the gender in the minority must be represented with a minimum quota in works councils that consist of at least three members (Section 15 subs. 2 BetrVG). Although the regulation is formulated in a gender-neutral way, it aims to counteract the underrepresentation of women in the works council that has so far been typical. To the extent that applicants for the works council election of the opposite sex are disadvantaged, this is compatible with the Basic Law (Article 3, Paragraph 3 of the Basic Law) (BAG of March 16, 2005 - 7 ABR 40/04). The minimum proportion of works council seats for the minority gender is calculated from the numerical ratio of men and women employed in the company.

Joint commitment by employer and works council

Both the employer and the works council must ensure that there is no discrimination against people because of their gender (Section 75 (1) BetrVG). The works council has to promote the enforcement of the actual equality of women and men, in particular in the recruitment, employment, education, training and further education and the professional advancement (§ 80 paragraph 1 No. 2a BetrVG) The works council can fulfill this task effectively, among other things, by exercising its legal possibilities to influence the personnel planning. The employer is obliged to inform the works council in a timely and comprehensive manner about personnel planning, in particular about the establishment and implementation of measures to promote equality between women and men on the basis of documents. He has to discuss the type and scope of the necessary measures and the avoidance of hardship with the works council. The works council can make suggestions to the employer for the introduction and implementation of personnel planning (Section 92 (3) in conjunction with (1) and (2) BetrVG). As measures come z. B. the creation of a women's advancement plan, family-friendly working time regulations, opportunities for teleworking or part-time work into consideration. However, he cannot force any action in this regard. By inspecting the gross wage and salary lists, the works council can check whether women are on an equal footing with men in terms of pay (Section 80 (2) sentence 2 BetrVG).

Status reports in the works / works council meeting

The works and departmental meetings offer both the works council and the employer the opportunity to express their views on the issue of gender equality in front of the workforce. In its activity report, the works council should regularly present the situation and problems of equality between female and male employees in the company (Section 45 sentence 1 BetrVG). The employer or his representative has at a works meeting at least once every calendar year. to report on human resources and social affairs, including the status of equality between women and men in the company, insofar as this does not jeopardize company or business secrets (Section 43 (2) BetrVG). The same applies to the employer's report in the annual works council meeting (Section 53 (2) BetrVG).

Tasks and rights with regard to remuneration

As part of its task (§ 80 Par. 1 No. 2a BetrVG), the works council promotes the Enforcement of equal pay of women and men in the company (Section 13, Paragraph 1, Sentence 1 of the EntgTranspG) Request for information (§ 10 EntgTranspG) to the works council. The works council must inform the employer comprehensively about incoming requests for information in an anonymous form. The works council demand that the employer undertakes the obligation to provide information (Section 14 (1) .EntgTranspG). Employees of employers who are not bound by collective bargaining agreements and who do not apply the collective bargaining agreement should contact the employer to request information (Section 15 (1) .EntgTranspG). This also applies if there is no works council (Section 14 (3) sentence 1 EntgTranspG) The works committee or a commissioned committee has to exercise its right to perform its tasks Lists of gross wages and salaries (Section 80 (2) sentence 2 BetrVG) to view and evaluate (Section 13 (2) EntgTranspG). The employer must allow the works committee to view the lists of gross wages and salaries of the employees and to break them down. The pay lists must broken down by gender all remuneration components include allowances above the collective bargaining agreement and such payments that are individually negotiated and paid. The fee lists are to be prepared in such a way that the works committee can properly fulfill the information within the scope of its right of inspection (13 para. 3 EntgTranspG).

Gender quota in the works council

In order to contribute to the achievement of real equality between men and women with regard to access to employment and with regard to working conditions, in Works councilsthat consist of at least three members, the members of the sex in the minority with one Minimum quota be represented (§ 15 Abs. 2 BetrVG). Although the regulation is formulated in a gender-neutral way, it aims to counteract the underrepresentation of women in the works council that has so far been typical. To the extent that applicants for the works council election of the opposite sex are disadvantaged, this is compatible with the Basic Law (Article 3, Paragraph 3 of the Basic Law) (BAG of March 16, 2005 - 7 ABR 40/04). The minimum proportion of works council seats for the minority gender is calculated from the numerical ratio of men and women employed in the company.

Joint commitment by employer and works council

Both the employer and the works council must ensure that there is no discrimination against people because of their gender (Section 75 (1) BetrVG). The works council has the Enforce actual equality of women and men, in particular with regard to recruitment, employment, training, further education and training and career advancement (Section 80 (1) No. 2a BetrVG). The works council can effectively fulfill this task, among other things, by exercising its legal possibilities to influence the Personnel planning perceives. The employer is obliged to inform the works council in a timely and comprehensive manner about personnel planning, in particular about the establishment and implementation of measures to promote equality between women and men on the basis of documents. He has to discuss the type and scope of the necessary measures and the avoidance of hardship with the works council. The works council can make suggestions to the employer for the introduction and implementation of personnel planning (Section 92 (3) in conjunction with (1) and (2) BetrVG). As measures come z. B. the creation of a Women's advancement plan, family-friendly working time arrangements, opportunities for teleworking or part-time work are being considered. However, he cannot force any action in this regard. By inspecting the gross wage and salary lists, the works council can check whether the women in the area of ​​the Remuneration are on an equal footing with men (Section 80 (2) sentence 2 BetrVG).

Status reports in the works meeting

The Works and department meetings offer both the works council and the employer the opportunity to comment on the issue of gender equality in front of the workforce. In its activity report, the works council should regularly present the situation and problems of equality between female and male employees in the company (Section 45 sentence 1 BetrVG). The employer or his representative has at a works meeting at least once every calendar year. to report on human resources and social affairs, including the status of equality between women and men in the company, insofar as this does not jeopardize company or business secrets (Section 43 (2) BetrVG).

Erwin Willing

ifb Institute for the Training of Works Councils GmbH & Co. KG

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