Articles | Height requirement fails to measure up

Alexandra Scarfe explains a recent case in the European courts which considered whether a minimum height requirement was indirect sex discrimination.

Alexandra Scarfe

Alexandra Scarfe

Indirect sex discrimination occurs where an apparently neutral policy puts one sex at a particular disadvantage compared with persons of the other sex, and the policy cannot be justified as a proportionate means of achieving a legitimate aim. The policy in question was a national law in Greece which requires all police officer candidates applying to training school to be at least 1.70 metres (5.58 foot) tall.

Ms Kalliri applied to join the police school but her application was rejected on the basis that, at 1.68 metres, she did not meet the minimum height requirement. Ms Kalliri disputed the requirement and the Greek courts found in her favour stating it was contrary to the constitutional principle of equality of the sexes. The Greek government appealed the decision and the question was referred to the European Court of Justice (ECJ).

The ECJ held that the minimum height requirement worked to the disadvantage of far more women than men because a larger number of women than men are less than 1.70 metres tall. On the issue of whether the requirement could be justified, the ECJ accepted the Greek government’s legitimate aim; to enable the effective accomplishment of the various tasks of the police force.

However, the ECJ held that the height requirement was not either appropriate or necessary to achieve the aim because certain police functions, such as traffic control, do not require the use of physical force or a particular physical aptitude. Even if all of the functions carried out by the Greek police require a particular physical aptitude, physical aptitude is not necessarily connected to being over a certain height. In any case, the aim could be achieved by measures that are less disadvantageous to women, such as carrying out pre-selection tests allowing physical ability to be assessed. The height requirement criterion was therefore not justified and indirectly discriminatory against women.

This case demonstrates that employers need to be careful when applying blanket restrictions which limit access to employment. Even if the employer has a legitimate aim to applying a restriction, assumptions based on physical ability should not be made; evidence will be required to demonstrate that they are necessary and appropriate.