Refusal to employ a pregnant woman contrary to Directive 76/207
The Court of Justice held that Directive 76/207 on equal treatment for men and women as regards access to employment precludes a refusal to appoint a pregnant woman to a post for an indefinite period on the basis of national legislation which seeks to ensure the protection of pregnant women.
Ms Mahlburg was employed under a fixed term contract as a nurse by the Land of Mecklenberg. When she applied, on 1 June 1995, for two nursing posts for an indefinite period, she was pregnant. On 13 July 1995, Ms Mahlburg gave written notice of the pregnancy to her employer. In order to comply with German legislation protecting pregnant women her employer immediately transferred her to another internal post. On 18 September 1995, it was decided not to appoint Ms Mahlburg, in accordance with the German legislation which prohibits employers from employing pregnant women in areas in which they would be exposed to the harmful effects of dangerous substances.
The Court of Justice concluded that only women can be refused employment on grounds of pregnancy and such a refusal therefore constitutes direct discrimination on grounds of sex. Moreover, the application of provisions concerning the protection of pregnant women cannot result in unfavourable treatment regarding their access to employment. Therefore, in the Court’s view, it is not permissible for an employer to refuse to take on a pregnant woman on the ground that a prohibition on employment arising on account of the pregnancy would prevent her being employed from the outset and for the duration of the pregnancy in the post of unlimited duration to be filled.
As for the possible financial consequences of an obligation to take on pregnant women, in particular for small and medium-sized undertakings, the Court ruled that a refusal to employ a woman on account of her pregnancy cannot be justified on grounds relating to the financial loss which an employer who appointed a pregnant woman would suffer for the duration of her maternity leave. (Case C-207/98, Mahlburg v Land Mecklenburg, judgement of 3/2/00)
