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Tall Tales: Is it High Time to allow Height Discrimination Claims?

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About The Author

Keir Baker (Former Editor in Chief)

Keir is a Trainee Solicitor currently in the fourth and final seat of his training contract at a major US law firm. He is a law graduate from Selwyn College, University of Cambridge. Outside the law, Keir is an accomplished goalkeeper in both football and hockey, as well as a keen actor and pianist. He is a long-suffering supporter of Middlesbrough FC.

You have to do your own growing, no matter how tall your grandfather was.

Abraham Lincoln

In many contexts, society demands men to be tall. Notwithstanding the advantage it gives to Peter Crouch, the need for a man to be of a certain height underpins the world of dating. Aside from the traditional desire for ‘tall, dark and handsome’ men, magazines like Cosmopolitan regularly feature articles like “14 Reasons Dating a Tall Guy Is the Best”.

It arguably works the other way for women. The perception that tall women were defying a gender norm saw doctors, until as recently as the 1990s, prescribe growth suppressing hormones: indeed, in 2010, practitioners from UCL told the BBC that they were still being approached by families hoping to limit their daughter’s growth.

Meanwhile, in the context of employment, the idea that there is such thing as height discrimination is not typically discussed. Outside cases of persons who are exceptionally tall or short, such that they might be considered disabled, height is a characteristic rarely associated with discrimination. After all, because this type of discrimination is subtle, many of those who are subjected to it may not realise that it has motivated decisions against them.

However, there is compelling evidence to show that height discrimination not only exists, but also has acute effects on people’s careers. Leslie Martel and Henry Biller have discovered that when given two equally qualified candidates who differed only in height, 72% of recruiters chose the taller candidate. Meanwhile, Nicola Persico et al. found that for every additional inch a man has in height, their wage increases by 1.8%.

This article therefore examines whether it is time for the law to address this issue. Other jurisdictions already have such protection in place: Ontario in Canada considers height discrimination a breach of its human rights code, while Victoria in Australia includes height within its prohibition on discrimination based on physical features under the Equal Opportunity Act 1995.

English and European law, however, is not quite so direct in its approach: as the European Court of Justice's (ECJ) decision in Kalliri [2017] shows, the courts are only able to combat height discrimination in a manner that is indirect and thus unlikely to be sufficiently comprehensive.

Ypourgos Esoterikon v Kalliri

The Facts

As mandated by Presidential Decree 4/1995, the Chief of Greek Police published notice of a competition that would allow candidates to secure a place at Greek Police School for the 2007-2008 academic year. Clause II.6 of that notice – following the requirement outlined in Article 2(1)(f) of Presidential Decree 4/1995 – stated that all candidates (male and female) had to be at least 1.7 metres tall to enter.

The claimant, Marie-Eleni Kalliri, entered the competition but – after being measured eight-tenths of an inch too short – she was prevented from participating. She challenged this decision in the Greek courts. The case reached the Council of State – the Supreme Administrative Court of Greece – which requested a Preliminary Reference under Article 267 TFEU, asking the ECJ to clarify whether EU law precluded the imposition of a height requirement in the context of recruitment for the police.

The Decision – Applicable Law

The ECJ noted that, because Greek Police’s notice was adopted in 2007, the applicable legislation to the case was Directive 76/207 rather than the more recent Directive 2006/54. It therefore cited Article 3(1)(a) of Directive 76/207, which provides that:

There shall be no direct or indirect discrimination on the grounds of sex in the public or private sectors, including public bodies, in relation to conditions for access to employment… including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy, including promotion.

Given the Greek Police’s notice concerned selection criteria and recruitment conditions that determined whether a person could access employment with a public body, the ECJ concluded that the case fell under the provision of Directive 76/207. It also made brief reference to Kratzer v RAV AG [2016], in which it was stressed that, in cases concerning employment and recruitment conditions, the claimant must show that their application was made genuinely with a view to securing the position, and not made with the motivation of trying to “trigger” discrimination and claim compensation.

The Decision – A Finding of Indirect Discrimination

Having determined the applicable legislation, the ECJ began examining the facts of the case for discrimination. Article 2(2) of Directive 76/207 prohibits two different forms of discrimination. To put these into context, sex discrimination is used as an example.

Direct Discrimination

Direct Discrimination is defined by Section 13 of the Equality Act 2010 (EqA 2010) – which stems from the EU Directives in this area – as being where one person is treated less favourably than another is, has been, or would be, treated in a comparable situation on the grounds of their sex.

Schedule 9 of the EqA 2010 allows direct discrimination to be justified by reference to so-called ‘Genuine Occupational Requirements’. This allows employers to legitimately make decisions about a person based on a certain characteristic where the possession of that characteristic is a requirement for the work. Examples of 'Genuine Occupational Requirements' include auditioning only male actors for a particular part to ensure authenticity, or requiring a rape counsellor to be female for reasons of sensitivity.

Indirect Discrimination

This is defined by Section 19 of the EqA 2010 as being where an apparently neutral provision, criterion or practice would put persons of one sex at a particular disadvantage compared with persons of the other sex, unless that provision, criterion or practice is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary.

Applied to the Facts of the Case

Because the Greek police’s height requirement applied to all persons submitting applications to the competition for entry to the police school regardless of their sex, the ECJ quickly concluded that there was no direct discrimination. Nonetheless, it was equally quick to confirm that the height requirement constituted indirect discrimination because more women than men are of a height of less than 1.70 metres. As a result, though the rule was neutral on its face – in that it applied to both genders equally – its application still put women at a very clear disadvantage.

The height requirement could still be considered legal if it could be objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary. The ECJ therefore considered submissions from the Greek Government that the requirement enabled the effective accomplishment of the task of the Greek police and that possession of certain particular physical attributes, such as being of a minimum height, was a necessary and appropriate condition for achieving that aim.

Though the ECJ accepted that previous decisions such as Vital Pérez [2014] and Salaberria Sorondo [2016] confirmed that ensuring the operational capacity and proper functioning of the police services constitutes a legitimate objective, it raised doubts over whether the implementation of a minimum height requirement was suitable for securing the attainment of the objective pursued by that law and that it went beyond what was necessary in order to attain it. Indeed, the ECJ observed:

Police functions involving the protection of persons and goods, the arrest and custody of offenders and… crime prevention patrols may require the use of physical force requiring a particular physical aptitude [but] certain police functions, such as providing assistance to citizens or traffic control, do not… even if all the functions carried out by the Greek police required a particular physical aptitude, it would not appear that such an aptitude is necessarily connected with being of a certain minimum height and that shorter persons naturally lack that aptitude.

The ECJ also observed that there were many other measures that the Greek Police Force could have adopted that still met the same objective while being less disadvantageous to women, such as a preselection of candidates based on specific tests allowing their physical ability to be assessed.

Comment – Development of Sex Discrimination Law

At first glance, the decision in Kalliri [2017] seems nothing more than a textbook application of the concept of indirect discrimination; the ECJ’s decision is characteristically concise and seems both straightforward and logical.

Yet there is more to this case. It extends the application of reasoning underlying a line of ECJ case law from direct discrimination cases – such as Kreil [1998] and Johnston [1986], which concerned rules prohibiting women from serving in the army and from handling firearms as police officers because they were not ‘suitable’ – to indirect discrimination cases.

It also represents another incremental step in the ECJ’s attempt to more rigorously police the legitimate objectives that can be raised to justify sex discrimination. Kalliri [2017] shows the ECJ scrutinising whether justifications advanced by a country are actually being achieved through the most appropriate and necessary means more closely than in previous cases.

Wider Implications – Permitting Height Discrimination Claims?

Kalliri [2017] highlights the significance of the distinction between indirect discrimination and direct discrimination: a claim of indirect discrimination was the only option available for the claimant, given that claims of direct discrimination on the grounds of height are currently not permitted in domestic or EU law.

The two concepts pursue different goals. Direct discrimination aims to secure so-called formal equality – typically equated with the need for like to be treated alike. In contrast, indirect discrimination is designed to counteract the inherent inequalities in society by ensuring that the opportunities for accessing benefits are determined on a proportional basis of group entitlements.

It is argued that the current position should change, such that it should become possible to bring direct discrimination claims on the grounds of height. For one thing, there is no reason why the goal of formal equality cannot be applied here – notwithstanding a small number of contexts, a shorter person is like a taller person for the purposes of their capacity to do a job. They should therefore be treated alike.

The Theories of Discrimination Law

Whether arguments in favour of permitting claims of direct discrimination on the grounds of height are sustainable requires an assessment of a fundamental question: what is the purpose of anti-discrimination law?

This can be answered by examining the competing theories of what underpins all of the various aspects of a person like age, race, religion, disability, sexual orientation and sex – termed ‘protected characteristics’ in Section 4 of the EqA – that are currently protected by anti-discrimination legislation.

Immutability

The current orthodoxy focuses on the concept of immutability – the idea that where certain aspects of a person are unchangeable and outside their control, they ought to be protected. This theory is, however, not water-tight; as Sedley LJ noted in Ewieda v British Airways [2010], it is questionable whether a person’s religious belief is something unchangeable and outside their control.

While it may be argued that societal and cultural pressures mean that religion is not always a choice, similar objections can nonetheless be raised in relation to other ‘protected characteristics’.  In light of the widespread access to contraception, it is arguable that the ‘protected characteristic’ of pregnancy – listed in Section 4 of the EqA 2010 – is a choice. Furthermore, Sandra Fredman has pointed out that:

Even the apparent immutability of sex itself is not unassailable… Many recent cases have concerned discrimination against transsexuals; here it is the very mutability of their sex that has triggered the discrimination.

Fundamental Choices

John Gardner has argued that the ‘protected characteristics’ are protected because they represent a subjective fundamental choice which every person should have the right to make, unconstrained from outside interference. They differ from trivial choices by the fact that they are inextricably associated with an individual’s pursuit of their identity.

Yet this theory is problematic: it overlooks that one person’s fundamental value may be trivial to another. Furthermore, the concept of choice wrongly implies that it is possible for people to choose to be of a certain race or sex, and their choice to do so is why they should be protected.

Stigmatisation

Robin Lenhardt is more pragmatic, suggesting that the fact that a characteristic is subject to widespread arbitrary, structural and punitive stigmatisation at the hands of the majority renders it sufficient to earmark that characteristic for protective status.

However, this is too broad: it brings many characteristics (such as alcoholism and drug addiction) within the scope of protective status, and fails to acknowledge that there are differing degrees of stigmatisation, such that it is not wholly clear where the line ought to be drawn between deserving and non-deserving cases.

The Favoured Theory – Irrelevant Considerations

It is argued that these theories over-complicate matters. Instead, the preferable view as to what underpins anti-discrimination law is the idea that the ‘protected characteristics’ constitute irrelevant considerations. This theory draws inspiration from an administrative law doctrine articulated by Lord Greene MR in the Court of Appeal’s decision in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947]:

A person entrusted with a discretion must… direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider.

In the context of employment and anti-discrimination law, the decision-maker is deciding – as an example – whether to offer a candidate a job. They should ‘call their attention’ to that candidate’s qualifications, experience and suitability for the role. They should ‘exclude from’ their consideration matters that do not impact on that candidate’s ability to perform the job.

A person’s race or sexuality will almost never impact on their ability to do a job. And while it is rare that a person’s sex, religion or age might, the law – through the Genuine Occupational Requirements in Schedule 9 of the EqA 2010 for direct discrimination, or objective justifications for indirect discrimination – has recognised some occasions where it is fair for that characteristic to be cited as a reason for taking a particular decision.

Therefore, put simply, anti-discrimination law should be taken as protecting certain characteristics because society has decided that they are the aspects of a person that should not be taken into account when others are making important decisions about them. They are irrelevant considerations, up to, until, and to the extent that these characteristics impact on the person’s objective capability to do a job. And when they do, anti-discrimination law allows for the raising of justifications – whether through the Genuine Occupational Requirements in Schedule 9 of the EqA 2010 or objective justifications – to be advanced to render apparent discrimination lawful.

If this theory is taken to be correct, it follows that height should be granted the status of a ‘protected characteristic’. It is undeniable that it is a characteristic that does not affect a person’s objective capability to do the vast majority of jobs. And when it does, the law – most likely through the application of the Genuine Occupational Requirements in Schedule 9 of the EqA 2010 – will allow employers to account for that.

Conclusion

Given the current position of the law, it could be argued that the claimant in Kalliri [2017] was fortunate that she was a woman. This allowed the ECJ to utilise the concept of indirect discrimination to protect her rights in what was a welcome, if not straightforward, decision.

Certainly, this case draws attention to a lacuna in the law. If a male claimant had brought a similar case, it is hard to see the ECJ reaching the same outcome; it could not rely on the idea that more women than men are of a height of less than 1.70 metres. That claimant would be without redress.

Ultimately, there is enough evidence to show that in the context of employment, height discrimination is a very real problem. And it is one which, at present, the law cannot completely resolve. This gap in protection can only be filled by direct discrimination; or, more accurately, by including height as one of the ‘protected characteristics’ that can be used as a ground of claim. At least two of the four theories examined in this article – including the current orthodoxy and the theory that, it is argued, should be preferred – would mandate such an inclusion. A change must therefore be considered; otherwise, the law risks coming up short.

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Tagged: Discrimination, Employment Law, Equality, European Union

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