The case concerned a female employee who was excluded from the selection procedure for the recruitment of personnel with the qualification of train conductor due to the lack of the minimum height requirement, set at 1.60 metres for both men and women.

According to the Court, the provision of an identical minimum height for men and women is contrary to the principle of equality enshrined in Article 3 of the Constitution because it erroneously assumes that the difference in average height between men and women does not exist, resulting in indirect discrimination against the latter, in violation of the code of equal opportunities between men and women.

In fact, according to Article 25(2) of Legislative Decree no. 198/2006, indirect discrimination occurs when “a provision, criterion, practice, act, covenant or conduct, including those of an organisational nature or affecting working time, that is apparently neutral, puts or is likely to put candidates during selection and workers of one sex at a particular disadvantage compared to workers of the other sex, unless it relates to essential requirements for the performance of the job, provided that the objective is legitimate and the means employed to achieve it are appropriate and necessary.”

The Court, upholding the decisions of the Tribunal and the Court of Appeal, declared the right of the unlawfully excluded female employee to be hired and ordered the company to pay the remuneration due to her.

The decision, in line with numerous precedents, reaffirms the importance for employers to pay special attention to compliance with equal opportunities legislation at every stage of the employment relationship, even pre-employment. 

It is especially considering that under Italian law and its application in case law, what counts in unequal treatment is the objectivity of the conduct and not its intentionality. 

Therefore, employers must have regulations and company policies that consider these aspects.