The Federal Labor Court (BAG) recently clarified this: If employees of different genders are paid differently for the same job, there is a presumption of gender-based discrimination (BAG, judgment of 23.10.2025 – 8 AZR 300/24). At the same time, the BAG has lowered the requirements for employees who wish to defend themselves against unequal pay. In future, it will be sufficient to name a person of the opposite sex with a higher salary for the same or equivalent work in order to justify the presumption of discrimination. It is then up to the employer to rebut this presumption and prove that there is no discrimination on the grounds of gender.

The initial case

In the underlying proceedings, a female employee had initially filed a complaint with the Baden-Württemberg Higher Labor Court (LAG) because she was paid less than several male colleagues – even though, in her opinion, she performed equivalent tasks. As justification, she referred to specific individuals and their salaries. This so-called pair comparison was not sufficient for the LAG and it dismissed the claim. The court required a “predominant probability” that the discrimination was gender-based in order to assume gender-based discrimination. A comparison with individuals was not sufficient for this, but rather the entire pool of employees with the same or equivalent work had to be taken into account. Their salaries must be considered as part of a comprehensive overall comparison.

The BAG decision

The BAG has now overturned this ruling on key points and clearly sided with the plaintiff – and all employees affected by unfair pay. The mere submission that a specific comparable person of the opposite sex is paid better for the same or equivalent work is sufficient to presume discrimination on the grounds of gender. Neither a large peer group nor a statistical analysis of average salaries are required as evidence for the presumption of discrimination. Neither German nor European law provides for an “overwhelming probability”.

Particularly important: In the opinion of the BAG, the pair comparison, i.e. the direct comparison with only one better-paid person of the opposite sex, is permissible and sufficient to shift the burden of proof to the employer. This makes it much easier for affected employees to assert their rights.

Employers have a duty

Once the presumption of discrimination has been established, the employer bears the full burden of proof in accordance with Section 22 of the General Equal Treatment Act (AGG): it must substantiate that there are objective and gender-neutral reasons for the differences in pay. General or sweeping statements are not sufficient – rather, the BAG demands comprehensible, documented facts. If the employer fails to provide this evidence, the discrimination is deemed to have been proven – with the result that affected employees can demand additional payments or compensation.

Significance for practice

The BAG ruling clearly proves that work of equal value deserves equal pay – regardless of gender. Anyone who feels discriminated against now has a legal tailwind and does not have to present an in-depth analysis, but only cite concrete comparisons. This makes it much easier to take action against hidden discrimination.

Companies, on the other hand, should review their pay structures now at the latest and document how pay decisions are made. Non-transparent or non-objectively justifiable pay differences are a legal and financial risk!