It's discriminatory to have the same minimum height requirement for women and men

Published on Sole24Ore – Nt Lavoro – on 07/07/2023

Exclusion from the selection process for failure to meet the minimum height requirement, set at 160 cm for both male and female applicants, it’s an indirect gender discrimination.

Thus, the Court of Cassation with its judgment no. 18522 of 28 June 2023.

In the present case, a female applicant was excluded from a procedure of selection for a position of “Chief train”, cause she didn’t meet the minimum height requirement set at 160 cm.
According to the Court of Appeal, the exclusion constituted an indirect gender discrimination, pursuant to the court-appointed that had determined that this minimum height requirement was not appropriate and functional with respect to the job position.

The Company appealed in Cassation claiming that they just followed the duties provided for in the train transport sector (Art. no. 1 and follow L. 874 of 1986, Legislative Decree no. 162 of 2007 and Decree Ansf 1/2009 of 6 April 2009).

The Court of Cassation, addressed by the question, rejected the appeal of the Company noting that the rule which provides a height minimum requirement equal both for male and female was discriminatory, contrasting with the principle of equality cause it doesn’t take into account the existence of an height leverage difference between male and female.
In this case, infact, the Judge evaluate the lawful of the rule for the purpose of its disapplication, concretely evaluating the functionality of the requirement provided respect to the job tasks.

According to the Court of Cassation, the above, its grounded on the Constitutional Court orientation according to which <> (Judgment no. 163/1993).

According to the Court, the principle of equality requires verifying that there is no violation of the proportionality criterion of the legal treatment provided in relation to the classification made by the legislature, taking into account the objective purpose inherent in the regulatory framework under consideration.
In the present case, according to the Court of Cassation, the Court of First instance correctly disapplied the rule, not compliant with the non-discriminatory principle, resulting not important the circumstance that the Company just followed the rule established by a third Authority, cause the discrimination operates objectively and regardless of the subjective intent of the perpetrator.

In a different respect, finally, the Court notes that in the case of indirect discrimination, the prohibited inequality is precisely the effect of an act, covenant, provision, or practice that is legitimate (Court of Cassation no. 20204/2019).