The discovery of equal pay for work of equal value:Competing narratives on sex-based pay discrimination in German legal discourse following the German pay transparency act

The German Pay Transparency Act is an attempt to encourage employers to identify and reduce their gender pay gaps and enable individual employees to have access to the relevant pay information for the successful commencement of equal pay claims. It is thus aimed at addressing the inability of the existing equality litigation framework to effectively enforce the equal pay principle through access to information and positive duties without changing the substance of the equal pay claim or the legal scope of pay discrimination. Nevertheless, the act has led to a judicial paradigm shift in Germany and altered what constitutes a prima facie case of pay discrimination and what shifts the burden of proof. Particularly, the Federal Labour Court has adopted an EU conform interpretation in the light of the Pay Transparency Act that has been forty years in the making. With reference to this German experience, this article adopts a structural analysis that demonstrates how the powerful creativity of judges can give life and meaning to legislative initiatives by interpreting them within their broader context, allowing their concepts to spill over into related legal field. This analysis shows that the Pay Transparency Directive can potentially provide significant impulses for the Member States to address pay discrimination.