Gender discrimination in professional contracts: extension and pay

A decision about extending a professional contract, setting pay or applying working conditions may be relevant under the Austrian Equal Treatment Act if gender was decisive for the different treatment. Section 3 covers direct and indirect discrimination in connection with employment.

The review separates the concrete decision, the comparison and the documented reasons. A sporting selection decision belongs in this article only where it also concerns an employment decision about the contract, pay, working conditions or termination.

Section 3 of the Austrian Equal Treatment Act prohibits direct or indirect discrimination because of gender in connection with employment. It expressly covers commencement of employment, the setting of pay, other working conditions and termination.

A planned extension therefore needs a precise description of the legal decision. Does it concern the creation of a further contractual period, a change in terms or the end of existing employment? The word extension can describe several processes and does not answer that question by itself.

The expiry of a fixed term is not by itself evidence of gender discrimination. The decision becomes relevant when the documents and the sequence indicate that gender influenced the selection, the offer, the conditions or the termination. Section 12 subsection 7 contains specific consequences for certain dismissals, early terminations and fixed-term employment relationships. The actual contract structure must therefore be reviewed closely.

Different treatment becomes concrete when the decision can be compared with the treatment of another person or group. For pay, section 12 subsection 2 requires equal work or work recognised as equal in value and lower pay than the pay of a person of the other sex.

In professional sport, comparison data should go beyond the player position in the squad. Review the agreed activity, period, contract form, scope of duties and remuneration structure. Sporting performance may be relevant to a contract decision. It explains different treatment only when the specific process records it as a genuine decision reason.

The same structure can apply to other working conditions. Identify the affected condition and the comparator separately. The record should show which condition differed and why the two situations can be compared.

Section 3 point 2 protects against gender discrimination in setting pay. Section 12 subsection 2 connects the remedy to equal or equal-value work and lower pay than the pay of a person of the other sex. The relevant remuneration period must therefore be fixed before the comparison begins.

A professional contract may include fixed pay, appearance and performance bonuses, benefits in kind and other agreed advantages. Each item should be listed with its contractual basis, relevant period and amount. A higher individual bonus may balance a different structure or may itself create the relevant difference. The answer depends on the actual agreements.

A payroll statement answers a different question from the legal basis of a claim. It shows what the club included and paid. Whether an item was owed and whether the difference was connected with gender requires the contract, the facts and the treatment of a person of the other sex to be reviewed together.

Section 12 subsection 12 contains a graduated rule. The affected person must rely on a discrimination ground and make it credible. The decision, the different treatment, the comparison and the indications that gender was a motive should be described as specifically as possible.

For an allegation under sections 3 or 4, the club must prove under the statutory rule that another motive credibly put forward by the club was more likely decisive, that the other sex was an indispensable requirement for the work or that a statutory justification applies. The decision is therefore assessed through the actual process and its records.

One statement or one pay difference may be an important indication. The file should also contain drafts, selection notes, messages, payroll records and comparison data. This keeps sporting reasons, budget decisions and a possible discrimination motive from being merged too early.

The remedy depends on the decision affected. If employment was not commenced because of gender, section 12 subsection 1 provides at least two months of pay where the applicant would have obtained the position in a non-discriminatory selection. If the proven disadvantage consists only in refusing to consider the application, the provision states up to 500 euros. This rule concerns commencement of employment and does not automatically apply to every contract extension.

For lower pay for equal or equal-value work, section 12 subsection 2 provides a claim for the difference and compensation for the personal detriment suffered. For unequal other working conditions, subsection 6 may support the provision of equal conditions or compensation for financial loss together with compensation for personal detriment.

Section 12 subsection 7 provides for a court challenge to a dismissal or early termination based on gender. For a fixed-term employment relationship designed to become indefinite, it also addresses an action to establish the indefinite existence of the employment relationship where the relationship ended by the passage of time because of gender. If the employee accepts the end, compensation for financial loss and personal detriment may be claimed. The specific remedy and any procedural time limits require an assessment of the individual case.

Keep the current professional contract, all addenda, extension offers, refusals and communications about the reasons in one file. Drafts or payroll records of comparable players may be useful where they are lawfully available and necessary for the comparison.

Arrange the documents by date and decision step: What was the contractual period? When was the extension discussed? Which terms were offered? What reason was given? Which person or group provides the comparison? Which financial or other consequence followed?

For pay, a table should distinguish fixed pay, bonuses, benefits in kind, period, contractual basis, payroll amount and actual payment. For conditions or termination, secure instructions, messages, meeting notes and the date of the decision separately.

Is every refusal to extend a professional contract discrimination?
No. The relevant points are the decision, the possible motive, the comparison and the recorded reasons. The expiry of a fixed term alone does not establish gender discrimination.

How can unequal pay be identified?
Compare equal or equal-value work, the specific pay components and the treatment of a person of the other sex. Fixed pay, bonuses and benefits in kind should be organised by contract and period.

Can a sporting selection decision still be relevant?
A purely sporting selection without employment discrimination is outside this article. If the selection is used for commencement, extension, pay, working conditions or termination, its equal-treatment relevance must be reviewed separately.

Who must prove the discrimination?
The affected person must make the discrimination ground credible under section 12 subsection 12. For an allegation under sections 3 or 4, the club then faces the statutory requirements for explaining and proving the reason for the different treatment.

Which claims are possible after discriminatory non-renewal?
The answer depends on the contract structure and the legal consequence. Section 12 subsection 7 addresses certain terminations and specific fixed-term relationships. Financial claims may also arise from discrimination in pay or working conditions.

Secure the complete contract with all addenda, communications about extension or termination, offers, refusals, payroll records and comparison data. Write the decision and the stated reason in a short timeline.

For further orientation, keep the gender-related issue separate from adjacent contract topics. The articles on the fixed-term professional contract and extension option and on the pay statement in a professional contract address different review questions.

Contact the firm
If you want a possible disadvantage in extension, pay or working conditions reviewed, keep the contract, addenda, comparison data and timeline ready. Mag. Bernhard Brandauer, Rechtsanwalt, will discuss the next sensible steps with you.

Subscribe to legal updates
Receive new articles and legal guidance from the firm through BRANDaktuelle Rechtsnews.