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Glossary termPublished inPay Transparency

Direct discrimination

Also known as directe discriminatie

What does "Direct discrimination" mean under the Pay Transparency Directive?

The situation in which one person is treated less favourably on grounds of sex than another person is, has been or would be treated in a comparable situation

Defined in / by

Last updated: 14 October 2026.

Less favourable treatment because of sex

Direct discrimination is the plainest case: a person gets worse treatment because of their sex than someone else gets, got or would get in a comparable situation. The three tenses matter. "Has been" lets a worker compare with a predecessor, and recital 29 confirms the comparison is not limited to workers employed at the same time as the claimant. "Would be" allows a hypothetical comparator, which recital 28 says lifts an obstacle in highly gender-segregated employment markets where no real comparator of the other sex exists.

Article 3(2) of the Pay Transparency Directive widens what discrimination includes for its purposes: harassment and sexual harassment related to the exercise of rights under the Directive, any instruction to discriminate on grounds of sex, less favourable treatment related to pregnancy or maternity leave, less favourable treatment based on sex with regard to paternity, parental or carers' leave, and intersectional discrimination.

Recital 17 sets the boundary on the other side. Paying workers who do the same work or work of equal value differently remains possible on objective, gender-neutral and bias-free criteria, such as performance and competence.

The Dutch bill's wording

The Dutch implementing bill (Kamerstuk 36949) keeps the term onderscheid and defines direct onderscheid as:

indien een persoon op grond van geslacht op een andere wijze wordt behandeld dan een ander in een vergelijkbare situatie wordt, is of zou worden behandeld

The Dutch wording speaks of being treated differently (op een andere wijze) where the Directive says less favourably. As at 13 October 2026 the bill is not yet law.

Questions and answers

Can a worker compare themselves with a predecessor under the Pay Transparency Directive?

Yes. Direct discrimination in Article 3(1), point (i), of Directive (EU) 2023/970 covers the treatment another person has been given, and recital 29 says the comparison is not limited to workers employed at the same time as the claimant.

Is paying a better performer more direct discrimination?

Not by itself. Recital 17 of Directive (EU) 2023/970 says employers may pay workers doing the same work or work of equal value differently on objective, gender-neutral and bias-free criteria, such as performance and competence.

Glossary

  • Intersectional discrimination

    Discrimination based on a combination of sex and any other ground or grounds of discrimination protected under Directive 2000/43/EC or 2000/78/EC.

  • Indirect discrimination

    The situation in which an apparently neutral provision, criterion or practice would put persons of one sex at a particular disadvantage compared with persons of the other sex, unless that provision, criterion or practice is objectively justified on the basis of a legitimate aim, and the means of achieving that aim are appropriate and necessary.

  • Work of equal value

    Work that is determined to be of equal value in accordance with the non-discriminatory and objective gender-neutral criteria referred to in Article 4(4).

Regulations

  • Pay Transparency Directive (Loontransparantie)

    The Pay Transparency Directive, Directive (EU) 2023/970, had to be transposed by 7 June 2026. The Dutch bill (Kamerstuk 36949) targets 1 January 2027 and has employers with 150 or more workers file a first pay gap report by 7 June 2028, on 2027. As at 13 October 2026 it awaits a vote in the Tweede Kamer.

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