## Facts

- German law (§ 19(1) Arbeitszeitordnung (AZO)) generally prohibited employing female manual workers at night, with limited exceptions; violations were punishable by fines.
- A female supervisor at a cake factory employed women at night to wrap cakes and was fined under the AZO penalty provision.
- After exhausting ordinary remedies, the supervisor filed a constitutional complaint challenging the constitutionality of the women-only night-work ban.
- Several local courts, in separate prosecutions against employers for employing women at night, referred the constitutionality question for concrete judicial review under the Basic Law.
- The Federal Constitutional Court joined the constitutional complaint and the referrals for decision.
- The supervisor argued that even if she was not personally the statute’s target, the law forced her (as an employer-side actor) to treat women differently from men.
- The Court found the complaint admissible because a law requiring a person to discriminate against third parties can directly interfere with that person’s general freedom of action.

## Issues

1. Whether a categorical ban on employing women (but not men) as night workers violates the Basic Law’s equality guarantees, including the prohibition on sex-based disadvantage.
2. Whether “protective” objectives such as health or maternity protection can justify a blanket sex-based exclusion from night work.
3. Whether imposing a fine on an employer-side actor under an unconstitutional, sex-discriminatory statute violates the actor’s general freedom of action.

## Decision

- The Court held § 19(1) AZO incompatible with the Basic Law’s equality provisions because it disadvantaged workers solely on the basis of sex.
- The Court ruled that the blanket women-only night-work ban could not be justified as health protection given its categorical and overinclusive design and the availability of less discriminatory means.
- The Court emphasized that constitutional equality bars the state from cementing traditional role expectations through sex-based work restrictions.
- The Court sustained the constitutional complaint and answered the referrals by declaring the challenged provisions unconstitutional.
- Because the underlying prohibition was unconstitutional, the fine imposed on the supervisor violated her general freedom of action.

## Legal Principles

- Sex is a generally forbidden ground for unequal treatment; sex-based classifications face especially strict constitutional limits even when framed as “protective” regulation.
- Equal rights for men and women require not only removing formal legal disadvantages but also securing equal opportunity in real-world access to employment and earnings.
- The state may not justify sex-based employment exclusions by relying on traditional role assumptions that impose added burdens or disadvantages on women.
- Health protection is a legitimate legislative aim, but a categorical sex-based ban is unconstitutional when it is disproportionate, treats similarly situated men differently, and ignores less discriminatory alternatives.
- A person may assert their own liberty interest when the law compels them to discriminate against others; sanctions imposed for noncompliance with such a discriminatory rule violate general freedom of action.

## Conclusion

The Court invalidated Germany’s women-only night-work ban as unconstitutional sex discrimination and set aside enforcement consequences by holding that a fine imposed under the invalid statute violated the fined party’s general freedom of action because the law compelled discriminatory treatment of women workers.


Nocturnal Employment Case (F.R.G.), 85 BVerfGE 191 (Fed. Const. Ct. 1992)