By Uladzislau Belavusau
In the recent years the Court of Justice of the European Union, has pronounced twice about physical requirements as a matter of discrimination. The first case – Kaltoft (C-354/13) – concerned obesity and was briefly annotated on European Law Blog. The present commentary will look into another case from the Union’s Court – Kalliri (C-409/16) – this time regarding discrimination based on height requirements. While it is usually excessive rather than low weight that causes discrimination, height entails a contrary correlation. By now, rich studies about stature in psychology and sociology unequivocally show that shorter people are more likely to face discrimination than their taller compatriots, with employment patterns often imitating biological dispositions about size amongst animals. Social hierarchies are, thus, clearly height-bound, permeating our public image, wages, choice of work partners and even success of presidential candidates.
What the present case of Kalliri (2017) illustrates in addition is that the stigma of short stature in employment has particular repercussions for women. Ms. Maria-Eleni Kalliri brought a complaint in front of the administrative court in Greece regarding the rejection of her application for police training due to insufficient height. The default height requirement for such applicants under Greek rules was 170 centimeters for both men and women. Ms. Kalliri fell short of this criterion by 2 centimeters and therefore complained that her dismissal was a matter of gender discrimination, since men are on average more likely to satisfy this requirement. While the lower tribunal found this to be discrimination, a higher Greek court requested a preliminary ruling from the Luxembourg court on whether the height requirement indeed constitutes sex discrimination under EU law.
Key Issues of the Judgement
First, the Court had to assess the type of discrimination at stake. It ruled out direct discrimination in the present case since the height requirement for entry to the police school was identical for both sexes. Consequently, the Court had to assess whether this requirement may constitute indirect discrimination. The referring court found in its decision that a much larger number of women than men are shorter than 1.70 m, which very clearly places women at a disadvantage. Consequently, the Luxembourg court logically concluded that the Greek law at issue in the main proceedings constitutes indirect discrimination.
Second, the Court looked into whether this type of indirect discrimination may be objectively justified by a legitimate aim, and if the means of achieving that aim were appropriate and necessary. The Greek Government submitted that the aim of the law at issue was to enable the effective accomplishment of the tasks of the Greek police and that possession of certain particular physical attributes, such as being of a minimum height, was a necessary and appropriate condition of achieving that aim. In this regard, the Court has already held in its previous case law that the concern to ensure the operational capacity and proper functioning of the police services indeed constitutes a legitimate objective. The Court observed, however, that while it is true that the exercise of police functions involving the protection of persons and goods, the arrest and custody of offenders and the conduct of crime prevention patrols may require the use of physical force, nonetheless, certain police functions, such as providing assistance to citizens or traffic control, do not clearly require the use of significant physical force. Furthermore, even if all the functions carried out by the Greek police required a particular physical aptitude, it would not appear that such an aptitude is necessarily connected with being of a certain minimum height and that shorter persons naturally lack that aptitude. In particular, the Court pointed to the fact that until 2003, for the purposes of admission to the police, Greek law required different minimum heights for men and women. The minimum height for the latter was 165 centimeters, compared with 170 centimeters for men. Likewise, with regard to Greek port police and coast guard, different minimum heights are currently required for men and women. The Court therefore considered that the aim pursued by the Greek law could be achieved by measures that are less disadvantageous to women, such as a preselection of candidates to the competition based on specific tests allowing their physical ability to be assessed.
Based on these considerations, the Court ruled that the Greek law at stake constituted indirect discrimination under EU law, as it worked to the disadvantage of a far greater number of women compared with men and that the measure did not appear to be neither appropriate nor necessary to achieve the legitimate objective pursued.
While this case is not the first occasion where the Court had to scrutinize trait-based discrimination, the preliminary reference has resulted in the first judgement by the Luxembourg court on height requirement as amounting to indirect discrimination of women. In this regard, the aforementioned case of Kaltoft (C-354/13) has been perhaps the most cited concerning alleged weight discrimination in the EU. While the Court there rejected a broad interpretation that weight requirements in employment constitute discrimination, it left it to national courts to assess whether specific instances of weight-based choices by employers may constitute discrimination on grounds of disability. In this regard, the case of Kalliri is a much stronger affirmation of a link between height and gender than that between weight and disability in Kaltoft. Likewise, Kalliri is not the first case to reach the Court of Justice about hiring practices in police units. The Court previously had to assess whether a maximum age requirement (of 35 years) may constitute direct discrimination for employment as police officers who are to perform all the operational duties, in the case of C-258/15 Sorondo (2016). The Court found that measure compatible with EU law. The Court, however, came to a different conclusion in its earlier case C-416/13 Vital Pérez (2014), precluding national legislation which sets the maximum age for the recruitment of local police officers at 30 years.
In a way, the outcome in Kalliri is somewhat predictable, as it is difficult to imagine a more emblematic example of indirect discrimination of women than based on height. Yet the case also points to a wider problem beyond indirect discrimination affecting only women, namely to heightism – along with sexism or racism for example – as a wide-spread phenomenon rarely contested by law. While weight discrimination has recently received abundant attention in comparative equality law, height remains a somewhat less challenged criterion within and beyond employment. The Kalliri case leaves open a Pandora box in EU anti-discrimination law beyond gender with regard to two aspects.
First, while the Court rejects height justifications as unequivocally related to the physical aptitude of policewomen, it remains unclear when height would actually merit such a bona fide requirement status (technically allowed by EU equality directives). Looking at the inconsistent jurisprudence of the Court on age discrimination regarding employment in police units (cases Sorondo and Pérez), and the employment of women in the military (cases Kreil and Sidar), it remains to be seen whether height requirements will survive in some elite forces. This judgement certainly seems to necessitate a more gender-differentiated imposition of height requirements to avoid accusations of indirect discrimination.
Second, using gender as a proxy to establish height discrimination begs the question of whether other traditional grounds of discrimination are suitable in this respect. In particular, race and ethnicity may well be statistically proven as related to height discrimination, giving rise to similar cases based on EU Race Equality Directive (2000). While it is statistically plausible that men are more likely to reach the height of 170 centimeters, it would be equally easy to prove that people of Chinese origin are less likely to reach that minimum height than those of Dutch ethnicity, for example. Kalliri, thus, contributes to a wider debate on the use of trait-based requirements, such as weight and appearance, in employment.
For a broader analysis of this case, see my article forthcoming in International Labor Rights Case Law (2018)