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Case:
BVerfGE, 85, 191.
Date:
28 January 1992
Judges:
Professor Donald P. Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany , 2nd ed. (1997), pp.291-4. (Text in italics by author).
Copyright:
Professor Donald P. Kommers

[A supervisor in a cake factory was fined for employing women to wrap cakes at night in violation of a statute basically forbidding the employment of women as blue-collar workers (Arbeiterinnen) during the night. After exhausting her ordinary judicial remedies, the supervisor filed a constitutional complaint, arguing that the law offended the equality provisions of Article 3 (1) and (3) of the Basic Law.]B....

The constitutional complaint is admissible.

The complainant’s allegations show a possible violation of her basic rights. It is true that she is not herself discriminated against by the prohibition of night labor by women. Thus there is no violation of her right to equality under Article 3 (3). But her general freedom of action [guaranteed by Article 2 (1) as construed in the Elfes case] can be infringed if the prohibition.. . offends Article 3 (1) and (3). In any event, a provision that requires a citizen to treat third persons in a discriminatory manner impinges directly upon her freedom of action....

C. The constitutional complaint is justified. . . . The prohibition of nocturnal employment of women is incompatible with Article 3 (1) and (3). The imposition of a fine on the basis of this unconstitutional law violates the complainant’s general freedom of action under Article 2 (1) of the Basic Law.

I. The ban on night work for women. . . offends Article 3 (3).

1. Under this provision no one may be disadvantaged or favored on the basis of sex. This paragraph reinforces the general equality provision of Article 3 (1) by imposing more stringent limitations on legislative judgment. Like the other charac-teristics listed in paragraph 3, sex basically may not be employed as a basis for unequal treatment. This is true even if the law in question is intended not to establish the forbidden inequality for its own sake but to pursue some independent goal.

With respect to the question whether a law unjustifiably discriminates against women, Article 3 (a) imposes no additional restrictions. What Article 3 (2) adds to the discrimination ban of Article 3 (3) is an affirmative command of equal opportunity [Glichberechtigungsgebot] that extends to the real social world [die gesellschaftliche Wirklichkeit]. The provision that “men and women shall have equal rights” is designed not only to do away with legal norms that base advantages or disadvantages on sex but also to bring about equal opportunity for men and women in the future. Its aim is the equalization of living conditions. Thus women must have the same earning opportunities as men... . Traditional role conceptions that lead to increased burdens or other disadvantages for women may not be entrenched by state action.. . . De facto disadvantages typically suffered by women may be made up for by rules that favor women.

The present case is concerned not with the equalization of conditions but with the removal of an inequality imposed by law. [The statute] treats women laborers unequally because of their sex. It is true that the rule is addressed to employers. But the consequences of the rule are felt immediately by female workers. Unlike men, -they are deprived of the opportunity to work at night. This is an inequality imposed by law on the basis of sex.

2. Not every inequality based on sex offends Article 3 (3). Gender distinctions may be permissible to the extent that they are indispensably necessary [zwingend erforderlich] to the solution of problems that ~h~1i nature can arise only for women or only for men. But this is not such a case.

(a) The prohibition of nocturnal employment was originally based upon the assumption that women laborers were constitutionally more susceptible to harm from night work than men. Studies in occupational medicine provide no firm basis for this assumption. Working at night is fundamentally harmful to everyone....

(b) Insofar as investigations show that women are more seriously harmed by night work, this conclusion is generally traced to the fact that they are also burdened with housework and child rearing.. . . Women who carry out these duties in addition to night work outside the home.. . obviously suffer the adverse conse-quences of nocturnal employment to an enhanced degree....

But the present ban on night work for all female laborers cannot be supported on this ground, for the additional burden of housework and child rearing is not a sufficiently gender specific characteristic. For the woman to mind the house and the children does correspond with the traditional division of responsibility between husband and wife, and it cannot be denied that she often tills this role even when she is as busy as her male partner with outside work. But this double burden falls with full weight only upon those women with children requiring care who arc single or whose male partners leave childcare and housework to them despite their nightly jobs. It falls equally upon single men who bring up children... . The undeniable need for protection of night laborers, male and female, who have children to bring up and a household to manage can better be met by rules that focus directly on these circumstances. -

(c) In support of the prohibition of night work it is also argued that women are subject to particular dangers on their ‘way to and from their place of nocturnal employment. In many cases that is no doubt true, but it does not justify forbidding all women laborers to work at night. The state may not escape its responsibility to protect women from being attacked in the public streets by restricting their occupational freedom in order to keep them from leaving their houses at night.

Furthermore, this argument is not so generally applicable to women laborers as a group as to justify disadvantaging all of them. Particular risks might be avoided, for example, by providing a company bus to take employees to work.

3. The infringement of the discrimination ban of Article 3 (3) is not justified by the equal opportunity command of Article 3 (2). The prohibition of night work... does not promote the goals of this provision. It is true that it protects a number of women.. . from nocturnal employment that is hazardous to their health. But this protection is coupled with significant disadvantages: Women are thereby prejudiced in their search for jobs. They may not accept work that must be done even in part at night. In some sectors this has led to a clear reduction in the training and employ-ment of women. In addition, women laborers are not free to dispose as they choose of their own working time. One result of all this may be that women will continue to be more burdened than men by child rearing and housework in addition to work outside the home, and that the traditional division of labor between the sexes may be further entrenched. To this extent the prohibition of night work impedes the elimination of the social disadvantages suffered by women.

II. [The statute] also offends Article 3 (1) of the Basic Law because it treats women laborers [Arbeiterinnen] differently from women in clerical positions [Angestelle] without sufficient reason.

I. The general equality provision of Article 3 (1) forbids the legislature to treat different classes of persons differently if there are no distinctions between them of such type and significance as to justify the difference in treatment.

2. The unequal treatment of the two classes of female employees could be justified only if women in white-collar jobs were less burdened by night work than those in blue-collar positions. But there is no evidence to support this conclusion. The relevant occupational health studies suggest rather that harmful consequences to health are the same for both groups.

3. Nor can the differential treatment of blue-collar and white-collar employees be justified by differences in the rate of nocturnal employment between the two groups of workers. Figures from 1989 show that between February and April of that year some 478,000 female clerical workers (7.6 percent of the total) were engaged in night work. Thus there can be no suggestion that white-collar women employees are typically spared the burdens of nocturnal employment. In any case women clerical workers are not a group so little affected by night work as to justify the legislature in generalizing to exclude them entirely.

III.

3. The immediate consequence of the finding of unconstitutionality is that offenses against [the statute] may not be punished. The legislature is under an obligation to adopt new rules to protect workers from the harmful effects of nocturnal employment. Such rules are necessary in order to satisfy the objective dimension of the fundamental rights, especially the right to bodily integrity (Article 2 [2], clause I). This basic right imposes an affirmative duty of protection on the state....

The fact that night work is performed on the basis of voluntary agreements does not obviate the need for statutory protection. The principle of private auton-omy that underlies the law of contract can afford adequate protection only to the extent that conditions permit the exercise of free will. When there is a gross inequal-ity of bargaining power between the parties, contract law alone cannot ensure an appropriate accommodation of competing interests. With employment contracts this is typically the case.

To leave [the subject] unregulated. . . would be contrary to the objective dimension of Article 2 (2), clause I....

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