Quick Hits
- If an employee earns less than a male colleague who performs the same or equivalent work, gender-based disadvantage is presumed under German employment law.
- Employers may rebut this presumption by showing objective, gender-neutral reasons for differences in compensation.
- Upon remand of a pay equity case by the Federal Labor Court (Bundesarbeitsgericht (BAG)), the Regional Labor Court of Baden-Württemberg (Landesarbeitsgericht Baden-Württemberg (LAG)) denied a female employee’s claim for the top salary but awarded her the difference between her pay and the median pay of the male comparator group.
On August 18, 2026 (Ref. No. 2 Sa 14/24), the Baden-Württemberg LAG issued another ruling in the case after it was remanded by the BAG (Ref. No. 8 AZR 300/24). The employee was awarded the difference between her pay and the median pay of the male comparator group, but not the pay of the highest-paid male colleague. The employer successfully rebutted the presumption of gender-based discrimination as to that colleague.
The Case—An Equal Pay Claim at Multiple Levels
The employee sued for retroactive equalization of several compensation components. She based her claim on the difference between her pay and that of a named male colleague at the same level in the hierarchy. He was the highest-paid colleague. In the alternative, she sought to have her salary adjusted to the median pay of the male comparator group.
In its October 1, 2024, decision, the LAG awarded the employee higher compensation but denied an adjustment “all the way up” to the highest-paid colleague. In the court’s view, there were not enough indications of direct discrimination at that level.
BAG—A One-to-One Comparison Is Sufficient
The BAG partially set aside that decision in its October 23, 2025, judgment. The BAG held that a presumption of gender-based disadvantage arises when an employee alleges and, if disputed, proves that a male colleague receives higher pay for the same or equivalent work. The size of the comparison group and median values do not matter. This does not mean that employers must always pay employees of another gender the highest pay in the comparator group. Different pay remains possible when objective factors unrelated to gender explain the difference.
New LAG Decision—Presumption of Discrimination Rebutted
In its ruling on remand from the BAG, the LAG distinguished between the two claims. The employer rebutted the presumption as to the named male top earner. The decisive factors were the overall situation within the male comparator group and the fact that the colleague had worked in the position for significantly longer. The employee therefore was not awarded the difference between her pay and the top salary. The LAG nevertheless ruled for the employee regarding the difference between her pay and the median pay of the male comparator group. On that issue, the employer did not rebut the presumption with gender-neutral criteria.
Takeaways
A comparison with a single colleague can trigger a presumption of gender-based pay discrimination. An employer may rebut that presumption with objective, gender-neutral reasons. The outcome therefore depends on whether differences in the individual case can be explained, for example, by the job profile, scope of responsibility, experience in the role, or specifically documented performance factors. Employers may want to analyze their compensation structures and document gender-neutral reasons for pay differences for each personnel action affecting pay. That documentation can help rebut the presumption of gender-based disadvantage later, if necessary.
Julia Kulmegies is an associate in Ogletree Deakins’ Berlin office.
Lela Salman, a law clerk in Ogletree Deakins’ Berlin office, contributed to this article.
