Germany: Federal Labor Court on the Right to Information in Suspected Gender Pay Bias

Quick Hits

• Anyone claiming unequal treatment in relation to a “comparator” must specifically demonstrate in court that they perform the same or equivalent work as the comparator.

• Anyone seeking to sue for “equal hourly wages” must specifically demonstrate the number of working hours on which their own monthly salary is based; without a verifiable gross hourly wage for the plaintiff, a comparison with the comparator’s gross hourly wage is not possible.

The Case – Information First, Payment Later

For several years, the employee had received a monthly base salary of EUR 3.900 gross as a salaried veterinarian at her father’s veterinary clinic. A significantly higher amount, namely EUR 7.100 gross, was received by a male veterinarian colleague—her brother—whom she used as a comparator. To quantify her claims for payment, she filed a two-stage action (Stufenklage): In the first stage, the employer was to provide her with information regarding the gross hourly wage paid to all male veterinarians. In the second stage, she was to be paid the difference between that amount and the gross hourly wage she had received.

The Decision – No Pay Comparison Without Reliable Data

The veterinarian was unsuccessful with her claim both at the Hameln Labor Court and on appeal at the Lower Saxony Regional Labor Court. The 8th Senate of the BAG dismissed the veterinarian’s appeal, thereby upholding the lower courts’ dismissals of her claims. The BAG clarifies: Under relevant EU law, a party must demonstrate and prove that her employer pays her a lower wage than a male colleague. This can only be achieved if it is specifically demonstrated that she and the colleague perform the same or at least equivalent work. If the employee succeeds in doing so, there is prima facie evidence of discrimination, with the result that the employer would then have to prove that the pay difference is not based on gender discrimination.

In this specific case, the BAG held that the veterinarian was required to specify her gross hourly wage based on the actual hours worked. A general assertion that she worked “full-time” was insufficient here, particularly since the employer had argued that the employee worked only 20 hours per week. The veterinarian also failed to provide sufficient evidence regarding the equality or equivalence of the respective duties performed. She was required to indicate the extent to which she and her brother both performed the same tasks, e.g., “management duties”.

Clarification of the Burden of Presentation

The decision clarifies that an employee alleging unequal pay must provide specifics at the pleading stage. The BAG emphasizes, however, that the principles of the burden of proof are not “overstretched”—they are procedural minimum requirements that are also justified in light of EU law and the Pay Transparency Act.

Outlook – New EU Requirements on Pay Transparency

The decision does not preclude upcoming changes under the EU Pay Transparency Directive (EU) 2023/970. The directive, which must be implemented by June 7, 2026, will introduce, among other things, a reversal of the burden of proof for employers, expanded rights to information regardless of company size, and reporting obligations for companies with 100 or more employees, making opaque pay structures a significant liability risk in the future.

For further background on pay transparency, please see our article “Pay Transparency: Update for Employers in Germany”.

Lena Beyer, LL.M. (Tokyo), is an associate in the Berlin office of Ogletree Deakins.

Lela Salman, a law clerk in the Berlin office of Ogletree Deakins, contributed to this article.

Image: Adobe Stock.