An employee is demanding that her employer retroactively equalise her pay with that of certain male colleagues for the same or equivalent work. She bases her claim on, among other things, data from an intranet dashboard in accordance with the Pay Transparency Act. The employer argues that the male comparators used did not perform the same or equivalent work and that the difference in remuneration was due to the claimant’s poor performance. The Baden-Württemberg Regional Labour Court dismissed the claim on the grounds that there was no overwhelming likelihood of gender-based discrimination.
The Federal Labour Court (judgment of 23 October 2025 – 8 AZR 300/24) took a different view and referred the case back to the Regional Labour Court. It found the following:
- Men and women are entitled to equal pay for equal or equivalent work.
- If a female employee demonstrates (and proves in the event of a dispute) that a male colleague receives higher remuneration than she does for the same or equivalent work, this regularly justifies the presumption of discrimination on the grounds of gender.
- It is irrelevant how large the comparison group of male colleagues is or what the median pay of the gender groups is.
- If the employer cannot refute the presumption of discrimination on the grounds of gender, the female employee may be entitled to the same salary as her male colleague.
- In an equal pay lawsuit, there is no obligation for an employee to prove a ‘predominant probability’ of gender-based discrimination. This would be incompatible with primary EU law.
- In the specific case, the BAG considers that the plaintiff has presented sufficient facts (with reference to the dashboard) to suggest gender-based pay discrimination.
The LAG must now examine whether the employer can refute the presumption of gender-based discrimination. The parties may submit further arguments on this point.
If a female employee receives less pay than at least one male colleague for the same or equivalent work, this regularly gives rise to the presumption of gender-based pay discrimination. The size of the male comparison group and the median pay of both gender groups are irrelevant to the claim for pay difference.
The most important points summarized briefly
An individual comparison between two individuals is sufficient to trigger a presumption of gender-based pay discrimination, without the need for statistical evidence.
