85 BVerfGE 191 (1992)

{Translator's Note: This case uses categorical German terms for which no exact English equivalent exist. I defined the categories as follows:

1. Arbeiter. This category consists of people who traditionally occupied themselves with manual labor. These people used to wear blue collars and receive a paycheck determined by hourly wages. I translated the term with ‘laborer’ or ‘worker’.

2. Angestellte. This category consists of people who traditionally occupied themselves with non-manual labor. These people receive a salary. I translated the term with ‘employees’.

3. Arbeitnehmer. Arbeitnehmer as a group includes Arbeiter and Angestellte. The term covers everyone who is working and not self-employed. I translated the term with ‘working person’.

The distinction between Arbeiter and Angestellte used to indicate education and social status, the latter being the one more highly regarded. Today an engineer in a factory could fall under Arbeiter and a doorman could fall under Angestellte. The distinction has little meaning left.}

[This case is a constitutional challenge of Section 19.1. first alternative of the Work Time Regulation (Arbeitszeitordnung, hereafter WTR) in the version last amended on March 10, 1975. That section reads that female workers may not be employed to work between 8 p.m. and 6 a.m. on regular days and after 5 p.m. on days before Sundays and holidays. The regulation has many general exceptions, for instance, it does not apply to health care, restaurants and transportation. The regulation is aimed at employers and provides for fines against employers who hire female workers for work at night.

The case is a consolidation of one constitutional complaint and two referrals from lower courts. The Federal Constitutional Court only discusses the complaint and finds the referrals invalid.

The petitioner in the constitutional complaint is a superior in a factory producing baked goods. She was fined DM 500 for a violation of Section 19.1. after four female workers were caught packing cakes at night. The petitioner challenged the fine in front of a trial court. That court and an appellate court rejected her challenge of Section 19.1. of the WTR. She then filed a constitutional complaint.

The petitioner alleged that Section 19.1. of the WTR violates Article 3.1. of the Basic Law because it differentiates without a reason between the women covered by Section 19.1. and those who are not. Moreover the petitioner alleged that Section 19.1. of the WTR violates Article 3.3. of the Basic Law because it disfavors women for no reason since work at night is as harmful to men as it is to women.

The Federal Constitutional Court then reviewed briefs and statements from various high courts. Thereafter it found the constitutional petition valid. The court noted that although the petitioner herself is not being discriminated against since she is no female worker, she may nevertheless bring a constitutional challenge because if Section 19.1 of the WTR violates Article 3 of the Basic Law, her right to free development from Article 2.1. of the Basic Law would be encroached upon.

Issue:
Is Section 19.1 of the WTR in violation of Article 3 of the Basic Law?

Holding by the First Senate:

Yes, it is.

Discussion:
The constitutional complaint is justified. The challenged decisions [of the courts which affirmed the DM 500 fine] are based on the prohibition to employ female workers at night as declared by Section 19.1. of the WTR. That prohibition, however, is irreconcilable with Article 3.1. and 3.3. of the Basic Law. The imposition of a fine based upon this unconstitutional legal foundation violates the petitioner in her basic right to [be unconstrained in one’s choices from Article 2.1. of the Basic Law] (Handlungsfreiheit).

The prohibition for female workers to work at night (Section 19 of the WTR) violates Article 3.3. of the Basic Law.

1. According to this constitutional norm, no one may be prejudiced or favored because of his gender. [This norm] strengthens the general principle of equality from Article 3.1. of the Basic Law by drawing narrower boundaries limiting the legislator’s discretion (Gestaltungsfreiheit). The gender [of a person], as well as the other attributes mentioned in [Article 3.3. of the Basic Law], may not, as a matter of principle, be used as [a decisive criteria] (Anknuepfungspunkt) for divergent treatment. This also holds if a regulation is not aimed at a divergent treatment prohibited by Article 3.3. of the Basic Law but rather pursues other goals.

[If the question to be addressed solely is] whether a regulation does not favor women because of their gender, Article 3.2. of the Basic Law does not include any further-reaching or more specific requirements [than Article 3.3. of the Basic Law]. The regulatory content of Article 3.2. of the Basic Law which surpasses the prohibition to discriminate from Article 3.3. of the Basic Law consists therein that [Article 3.2.] introduces a command of equality (Gleichberechtigungsgebot) and reaches into social reality. The sentence ‘Men and women shall have equal rights’ does not only strive to eliminate legal norms which [make] advantages and disadvantages [dependent] on gender attributes, [it also strives for] pushing through the equality of the genders in the future. It aims at the alignment of the circumstances of life. Women must have the same [possibilities in the job market as men]. Overcome [social assignments of certain roles to women] which lead to a higher burden or other disadvantages for women, may not be strengthened by state measurements. Factual disadvantages which typically affect women, may be balanced by favoring regulations due to the command of equality of Article 3.2. of the Basic Law.

In this case [the issue] is not an alignment of situations, but rather the abolishment (Beseitigung) of a current divergent legal treatment. Section 19.1. of the WTR treats female workers unequal ‘because’ of their gender. Although the addressee of the regulation is the employer, the effect of the prohibition to work at night immediately strikes female workers. [In contrast to male employees, female workers] are being deprived of the possibility to work at night. In this lies a divergent legal treatment [of female workers which is caused by their membership of a gender group].

2. However not every divergent legal treatment which is [entirely dependent] on gender, violates Article 3.3. of the Basic Law. Differentiating regulations can be permissible if they [are a necessity] for the solution of problems that can, by their nature, only occur either with men or with women. Such a case is not [in front of the court today].

a) The assumption which originally was the basis [for introducing the prohibition for female workers to work at night] that female workers, due to their [physical] constitution, suffer more from work at night than male employees, [could not securely be confirmed by medical research on the effects of work]. Work at night is principally damaging to every human being. It leads to sleeplessness, distortions of the appetite, distortions of the digestive system], increased nervousness and sensitivity as well as to a lowering of [people’s ability to perform]. Specific health risks that are due to the female [physical] constitution are not identifiable with sufficient certainty.

b) As far as studies indicate that women are more negatively affected by work at night, this is generally being traced to their additional burdening with household work and caring for children. Women who have to fulfill these duties in addition to nighttime employment do not come to rest during the day and particularly cannot find continuous sleep during the day. It is obvious that [these women], to a particular extent, have to suffer from the health damaging consequences of a distorted day-night-rhythm.

However, the prohibition to work at night [which] applies to all female workers cannot be based [on these health damaging consequences]; for the additional burdening with household work and caring for children is not a sufficiently gender-specific attribute. [It is true that] it is in accord with the traditional understanding of roles of men and women that the women runs the household and cares for the children, and one can also not deny that this role also falls very often to the women even [in cases] when she works exactly like her male partner. This double burden, however, strikes in its full weight only women with children who require care, as far as they are single or their male partner, despite her work at night, leaves for her the caring for the children and the household work. In the same manner [the double burden] strikes men [who raise children alone] and in a milder form [the double burden strikes] men and women who share the work in the house and with the children.

Such a social finding is insufficient--independent of the number of affected [persons]-- for the justification of a gender related divergent treatment. The undeniable right to be protected of female night workers and male night workers, who simultaneously care for children and run a household [with several members], can more adequately be [provided for] with regulation which [uses the double burden as a decisive criteria and not gender].

c) For the current prohibition to work at night [one often encounters the argument] that women are subject to particular dangers on their way from and to work at night. This is certainly true in many cases. But this also cannot LEFT to prohibit all female workers to work at night. The state may not evade its duty to protect women from physical attacks on public streets [by causing them not to leave the house at night with the mean of limiting their occupational freedom]. Moreover, this reason does not apply so generally to the group of female workers that it could LEFT to disfavor all female workers. For instance, a particular endangerment can be absent [if transportation from and to work is available.]

3. The violation of the prohibition to discriminate with respect to gender (Article 3.3. of the Basic Law) is not justified by the duty to ensure gender equality (Gleichberechtigungsgebot) of Article 3.2. of the Basic Law. The prohibition to work at night from Section 19.1 of the WTR is not supportive of the aims of Article 3.2. of the Basic Law. It surely protects a large number of women who, [in addition] to caring for the children and doing household work, [have an outside employment] from health-endangering work at night. This protection, however, is related to significant disadvantages: [The regulation] disfavors women in their search for employment. [Women] cannot accept work which at least at times must be performed at night. In some sectors [of the economy this exclusion of women] has led to a clear decrease of education and use of female employees. In addition female workers are being prevented from disposing freely their time [between work and non-work. Moreover women are being prevented from earning [extra benefits awarded for night work. All these limitations] may also have the consequence that women unceasingly will, to a larger degree than men, be burdened with caring for children and doing household work [in addition have an outside employment], and that thereby the overcome assignment of roles to the genders get reinforced. In that sense the prohibition to work at night renders more difficult the deconstruction of social disadvantages of women.

II.

Section 19.1. of the WTR also violates Article 3.1. of the Basic Law because the regulation treats female laborers different from female employees without sufficient reason.

1. The general principle of equality from Article 3.1. of the Basic Law prohibits the legislator from treating the legal situation of different groups of persons. in a differentiating manner, when between [the groups] there are no differences of such a kind or such a weight which could LEFT the divergent treatment. [It is irreconcilable with this principle] that female laborers, with respect to work at night, are being treated differently from female employees.

2. The divergent treatment of these two groups of working persons could only be justified, if female employees would be less burdened by work at night than female laborers. For this [lower damaging effect for one group] there is no proof. [In contrast] the relevant medical studies on the effects of work indicate that the health-damaging effects of work at night strike both groups in the same manner. Whether this is causally related to an alignment of the work contents of female laborers and female employees in the train of technical development, or, whether work contents from the beginning had no effect on the [amount of negative consequences] of work at night, need not be decided. In any event, one cannot perceive a different need for protection between female laborers and female employees which alone could LEFT a divergent regulation of work at night in the light of the general principle of equality from Article 3.1. of the Basic Law.

3. The divergent treatment of female laborers and female employees may also not be justified [with the argument] that the two groups of female working persons are called upon to work at night [in different degrees. An empirical study from spring 1989 shows that about] 478,000 female employees worked at night. That represents 7.8 percent [of all female employees]. Therefore one may not argue that the group of female employees typically gets spared from working at night. In any event, the group of female employees is not a group which gets affected to such a small extent by work at night, that it could have remained [unaddressed] by the legislator in the context of permissible [categorizing of people (Typisierung)]...

D.

The challenged holdings rest upon the unconstitutional regulation of Section 19.1. of the WTR. Therefore they have to be reversed.

[signed by all eight judges]

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