Facts
The case concerns the salary classification of physiotherapists in the Canton of Solothurn. [B.], a physiotherapist, filed a lawsuit together with other physiotherapists against the Canton of Solothurn with the aim of obtaining legally and gender-equal remuneration in accordance with Art. 4 para. 2 of the Federal Constitution. The Administrative Court of the Canton of Solothurn had an expert opinion on work science prepared, which concluded that the function of the physiotherapist should be classified in salary class 18. The Administrative Court followed this assessment and obliged the Canton to pay [B.] a salary of salary class 18 as of January 1, 1996.
The Canton of Solothurn filed an administrative court appeal against this judgment. The Federal Supreme Court upheld the appeal, set aside the decision of the Administrative Court and remanded the case for a new assessment to the lower instance.
Considerations
The Federal Supreme Court stated that according to Art. 4 para. 2 sentence 3 of the Federal Constitution and Art. 3 of the Gender Equality Act, employees have a right to equal pay for work of equal value and must not be discriminated against directly or indirectly on the basis of their gender. Indirect gender-based discrimination exists if a formally gender-neutral regulation substantially disadvantages members of one gender compared to the other gender without objective justification.
The Federal Supreme Court further stated that the evaluation of different functions is a matter of discretion, but the evaluation must not be arbitrary or unequal under…