Height requirement unlawful

04.01.2018

In a restatement of familiar principles, the ECJ held in Esoterikon v Kalliri that a Greek national law that prescribed a minimum height requirement for candidates to enter police school and therefore train as police officers constituted indirect sex discrimination against women. The policy could not be justified, as more proportionate measures (such as physical aptitude tests) would have been sufficient.

A national law in Greece requires both male and female applicants to police school to be at least 1.70 metres tall, without shoes. The Administrative Court of Appeal in Greece received a complaint from Ms Kalliri whose application to a police school had been rejected because her height of 1.68 metres fell below the minimum threshold. Ms Kalliri contended that the minimum height requirement did not give effect to the constitutional principle of equality of the sexes. Following an appeal by the Greek Interior Minister and the Minister of Education and Religious affairs, the Council of State referred the case to the ECJ for a preliminary ruling on the question of whether the minimum height requirement was compatible with EU law.

The ECJ found that the minimum height requirement was a criterion that was indirectly discriminatory against women as far more women than men would be disadvantaged by the height restriction and thus prevented from accessing employment in the police force. The ECJ acknowledged that the policy had a legitimate aim (facilitating the various functions of the police). However, the height restriction was not an appropriate or necessary means of achieving this aim because: (1) not all police functions required the use of significant physical use or a particular physical aptitude; (2) even if all police functions did require physical aptitude this was not inextricably linked to a certain height; and (3) prior to 2003, the height requirement for aspiring female police officers had only been 1.65m (and for other professions, such as the armed forces, the required continued to be only 1.60m).

The ECJ considered that pre-selection aptitude tests to assess the physical ability of candidates for admission to the Greek police force would be less disadvantageous to women. This is an example of a proportionate means of achieving the legitimate aim. It serves as a reminder to employers to always consider carefully whether an alternative measure could be put in place, which would have a lesser impact.

Justin Costley

Author