Regional Labour Court of Berlin-Brandenburg, Judgment from 28.05.2014 - 4 Sa Sa 238/14 157/14 and Labour Court Berlin, Judgment from 18.12.2013 – 54 Ca 6322/13

Facts: The defendant - a division of the Evangelical Church in Germany (EKD) - announced a position for a desk officer. In the announcement, a prerequisite to the position was membership to the Evangelical church or alternatively, a Christian church as well as identification with the diaconal mission. The applicant, who was not a member of any church, applied unsuccessfully for the post; she was not invited for an interview.

Judgment (first instance): The defendant may use the requirement of a church membership only if it constitutes a "genuine, legitimate and justified occupational requirement". This could not be determined in respect to a desk officer’s job in this case.
The judgment was not final; it was to be appealed in front of the Regional Labour Court of Berlin-Brandenburg.

Judgment (second instance): The Regional Labour Court of Berlin-Brandenburg repealed the judgment of the Labour Court Berlin and adjudicated that the unequal treatment of the applicant with regard to the constitutional right of the churches to self-determination (Art. 140 of the Constitution) is justified according to § 9 AGG. The applicant has no right to compensation.

The court admitted the judgment to the Federal Labour Court for revision because of fundamental importance of the case. The lawsuit is now pending at the Federal Labour Court.