In accordance with article 4 (2) Directive 2000/78/EC, religion or belief can be used as a decisive criterion when “by reason of the nature of these activities or of the context in which they are carried out” (...) they constitute “a genuine, legitimate and justified occupational requirement, having regard to the organisation's ethos.” This suggests that, when invoking this exceptional rule, a distinction must be made as to the relationship of the position to its “preaching” role. “Preaching” are activities that convey the doctrine of the religion internally and externally, such as the worship services or pastoral care. Alternatively, non-preaching activities relate to employees of the administration or the building cleaning staff, but also employees of “charitable” institutions of religious communities, such as schools and hospitals.
In accordance with § 9 (1) AGG, confessional employers are, under certain conditions, allowed to make use of this exceptional rule on the recruitment of staff based on religious affiliation. Employers, such as charitable organizations or church-sponsored agencies can, in relation to this exception to the rule, use religious affiliation or conviction to a belief as a criterion for hiring or refusal to hire of an applicant. It is common in Germany that these employers prefer employees with a religious affiliation to a respective church throughout all positions.
In so doing, the German legislator is significantly expanding the narrow European benchmarks for the permissibility of exceptions of this rule. Confessional organizations are the second largest employer in Germany after the public sector. Many people are therefore affected by this unjustifiable expansion of permissible exceptions to this rule. Additionally, confessional employers may demand loyalty and sincerity from their employees in light of their respective self-determination, according to § 9 (2) AGG.
In 2015, the Anti-Racism Committee of the United Nations indicated in their Concluding Remarks on the German Government’s Report that this norm should be altered or supplemented because it does not presently conform to the obligations of the Anti-Racism Convention.
To the extent that religious affiliation is an essential and deciding occupational requirement – i.e. the hiring of a female pastor – the exception of § 8 (1) AGG applies anyway. Furthermore, the principles of labour law developed by judicial proceedings already allow a strict loyalty commitment based on the proximity to preaching nature of the activity. This is also undisputed in case law and literature. Therefore, a special regulation is not necessary.
For these reasons, BUG encourages § 9 (1) and (2) AGG to be completely deleted.