Until now, the right to equal pay for equal work or work of equal value was doomed to failure in most cases—the new ruling by the Federal Labor Court (BAG) will hopefully help many women achieve success.

The plaintiff is employed as a department head and in 2018 requested information from her employer in accordance with the German Remuneration Transparency Act (Sections 10 et seq. EntgTransG), with the result that the comparative remuneration (average salary of the department heads working there) was significantly higher than that of the plaintiff. The plaintiff sought to claim the corresponding difference retroactively. After the labor court upheld this claim, the appeal before the Lower Saxony Regional Labor Court resulted in the claim being dismissed on the grounds that there was insufficient evidence to prove discrimination on the basis of gender. The plaintiff then took the case to the Federal Labor Court—with success!

In the aforementioned ruling of the Federal Labor Court (BAG) of January 21, 2021, it is clarified that it is generally considered discrimination if a woman earns less than a comparable group of men. The BAG justifies its decision on the grounds that employers also have the option of setting remuneration rules – and therefore also bear responsibility for ensuring that there is no discrimination on the basis of gender. The burden of proof has always been a point of contention. With its ruling of January 21, 2021, the BAG strengthens the rights of all employees, as the employer now bears the burden of proof as soon as there is evidence of unequal treatment.

This decision is a major step toward equal pay, as it greatly facilitates proceedings under the Pay Transparency Act. Access to median pay (average income) will be sufficient grounds for filing a lawsuit in the event of a corresponding deviation.