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Glossary termPublished inPay Transparency

Indirect discrimination

Also known as indirecte discriminatie

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

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

Defined in / by

Last updated: 14 October 2026.

A neutral rule with an uneven effect

Indirect discrimination catches rules that never mention sex but hit one sex harder. A pay rule, a bonus criterion or a grading practice that looks neutral is indirect discrimination when it would put persons of one sex at a particular disadvantage, unless it passes the test written into the definition itself: a legitimate aim, pursued by means that are appropriate and necessary.

The Pay Transparency Directive points at job evaluation as the place where this happens. Recital 31 says job classification and evaluation systems that are not used in a gender-neutral manner, in particular when they assume traditional gender stereotypes, can evaluate male- and female-dominated jobs differently where the work is of equal value. Used in a gender-neutral manner, the same systems detect indirect pay discrimination related to the undervaluation of jobs typically done by women. Article 4(4) requires the job evaluation criteria to exclude any direct or indirect discrimination based on sex.

Recital 28 adds that workers may rely on other facts from which discrimination can be presumed, such as statistics or other available information.

The Dutch bill's wording

The Dutch implementing bill (Kamerstuk 36949) defines indirect onderscheid as:

indien een ogenschijnlijk neutrale bepaling, maatstaf of handelwijze personen van een bepaald geslacht in vergelijking met andere personen bijzonder treft

The bill's definition ends at the disadvantage and does not contain the Directive's justification test. As at 13 October 2026 the bill is not yet law.

Questions and answers

Can indirect discrimination be justified under the Pay Transparency Directive?

Yes, within the definition itself. Article 3(1), point (j), of Directive (EU) 2023/970 excludes a provision, criterion or practice that is objectively justified on the basis of a legitimate aim, where the means of achieving that aim are appropriate and necessary.

How does job evaluation relate to indirect discrimination?

Recital 31 of Directive (EU) 2023/970 says job evaluation and classification systems that are not used in a gender-neutral manner can undervalue jobs typically done by women. Used in a gender-neutral manner, they help detect that indirect pay discrimination.

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.

  • Direct discrimination

    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.

  • 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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    Wet implementatie Richtlijn loontransparantie mannen en vrouwen enters into force