A tall tale! Can minimum height requirements be discriminatory?
Those of you who know me personally, will be aware that being “vertically challenged” at 1.52 m tall, I would be interested in this particular case from Greece. It looked at the minimum height requirements being imposed by the Greek Police for recruitment to the force, but the findings have wider implications for any employer recruiting new staff.
The Court of Justice of the European Union (CJEU) had to consider whether it was indirectly discriminatory to require both men and women to be at least 1.70m tall – and if it was, whether this could be objectively justified, which, under the Equal Treatment Directive, means ‘objective and necessary’.
Discrimination can either be direct or indirect. Direct discrimination in the context of gender is, for example, where a person is not promoted because she is a woman. Indirect discrimination is where an apparently neutral provision, criteria or practice is applied that disadvantages one group over another.
Although there is no defence of ‘objective justification’ available in direct discrimination cases, it is available for indirect discrimination claims if it is considered to be a proportionate means of achieving a legitimate aim.
The CJEU had decided in previous cases that ensuring the operational capacity and proper functioning of the police services constituted a legitimate objective. So this time they were looking at whether the height requirement was objective and necessary.
Every application to join the police was treated equally, irrespective of gender so the question was whether this height requirement disadvantaged women. Unsurprisingly, the statistics showed that by imposing the restriction, this disproportionately affected women as they are shorter on average.
The Greek government argued that the objective it was trying to achieve was to ensure police officers had the necessary physical capability for the job (which the CJEU accepted) and that imposing this height restriction was appropriate or necessary to achieve this. However, the CJEU could find no correlation between height and physical strength, and noted that until 2003 there had been different heights – 1.65m for women and 1.70m for men.
In this particular case (Ypourgos Ethnikis Pedias kai Thriskevmaton v Kalliri) the CJEU said that there were other ways of ensuring officers had the necessary physical capability, such as strength and physical fitness tests, and, because of this, the 1.70m requirement was not justified and therefore ruled that the height requirement was indirectly discriminatory.
To avoid falling into this trap it is therefore always important to consider apparently neutral requirements that are imposed on applicants and think: will this disadvantage any group in particular and, if it does, can it be objectively justified?
Posted on 13 Nov 2017