Gender equality and physical requirements in employment

Physical requirements play a prominent role in employment. Generally speaking, physical requirements are demands that somebody meet certain physical characteristics as a precondition for a job. They can take the form of facially neutral demands concerning qualities of the body, like height, weight or BMI, but also concerning a person’s physical fitness, in physically demanding professions such as the police, the military, the rescue services or coal mining. Typically, it is more difficult for women to meet such requirements than it is for men – that is, they have gender-specific effects. But physical requirements may also be explicitly sex-based. They may take the form of what in US law is called a “bona fide occupational requirement”, when only a man or only a women is considered for a certain job. Finally, physical requirements may also refer to certain cultural expectations concerning how a person “performs” masculinity or femininity, for example by institutionalizing gender specific clothing regulations or by banning specific clothes that are typical for one or the other gender, such as headscarves worn by some Muslim women.

The focus of this paper is on exploring the various dimensions of physical requirements in the labour market and on the tensions that exist between physical requirements and the principle of gender equality as enshrined in EU law. It will first deal with differential treatment based on a characteristic directly related to sex, to be followed by the exploration of facially neutral physical requirements that have different effects on men and women. Finally, the paper will turn to the issue of clothing regulations as a specific form of physical requirements that may target the genders directly or indirectly, and often in intersectional ways, that is, in a combination of several grounds of discrimination, such as ethnicity, religion or sexual orientation. All of these issues will be considered in the light of EU law, particularly the case law of the Court of Justice of the European Union (CJEU) based on the Equal Treatment Directive and the Gender ‘Recast’ Directive.