Religious affiliation as a prerequisite for recruitment by church employers must be subject to judicial review
ECJ, Judgment of the Grand Chamber of 17.04.2018, Vera Egenberger v Evangelisches Werk für Diakonie und Entwicklung e.V., C-414/16

Ms. E., who does not belong to any denomination, applied in 2012 for a position advertised by the Evangelisches Werk für Diakonie und Entwicklung e.V. (Protestant Work for Diakonia and Development), which presupposed that she belonged to a Protestant denomination. The applicant was not invited for an interview, although her application had remained in the competition after a first screening. In the end, an applicant of Protestant denomination was recruited. Ms E. then brought an action before the Labour Court for compensation and made discrimination on the grounds of religion in accordance with § 15 (2) and § 7 in conjunction with § 1 AGG (BAG, decision of 17.03.2016, 8 AZR 501/14)

In this connection, the Bundesarbeitsgericht (Federal Labour Court) submitted a reference for a preliminary ruling to the European Court of Justice on the interpretation of Article 4(2) of Directive 2000/78/EC ("Self-determination of Church Employers"). This provision allows Member States to provide that a difference of treatment based on religion or belief shall not constitute discrimination if the religion or belief of the worker, by reason of the nature of the activity or of the context in which it is carried out, constitutes a genuine, legitimate and justified occupational requirement, having regard to the ethos of the organisation. § 9 AGG transposes this into national law.

According to the ECJ, however, this also means that in the event that a religious community asserts, in support of an act or decision, such as the rejection of an application, that the requirement of religious affiliation is an essential, legitimate and justified occupational requirement for the employment relationship in view of the ethos of that church or organisation, such submission must be subject to effective judicial review. The requirement must also comply with the principle of proportionality.

This is intended to ensure that the criteria set out in Article 4(2) of the Directive are met in the specific case.

Internal neutrality requirements: Headscarf ban for drugstore employees is illegal Nuremberg Regional Labour Court, judgment of 27.03.2018, 7 Sa 304/17

The plaintiff is employed by a drugstore chain operating nationwide. After her parental leave, the plaintiff, unlike before, appeared at work with a Muslim headscarf. As a result, the branch manager pointed out to the plaintiff that she would not be employed if she wore a headscarf and referred to a company requirement according to which all employees had to observe a certain religious and ideologically neutral dress code.

The plaintiff brought an action before the labour court against the employer's instructions. The plaintiff won the action before the Nuremberg Labour Court (ArbG Nürnberg, judgment of 28 March 2017, 8 Ca 6967/14) and the defendant was ordered to pay the plaintiff remuneration claims and holiday pay. On the other hand, the defendant appealed before the LArbG Nürnberg, which was found to be unfounded, as the defendant's instruction was also, in the opinion of the LArbG, invalid.

Although the employer may also prescribe certain elements of the external appearance of the employees in accordance with her right to direct under § 106 GewO, in this case there was an unlawful violation of the prohibition of discrimination under § 7 AGG, as Muslim women are indirectly discriminated against on the basis of their religion and gender. Although the requirement for corporate neutrality applies to everyone, it affects Muslim women, who wear a headscarf as an expression of their faith, to a far greater extent than other employees. In the present case, the defendant cannot assert any objective justifying this indirect discrimination either. In addition, the headscarf ban also impairs the plaintiff's freedom of religion under Article 4.1 and 4.2 of the Basic Law.

The defendant's instruction was also unlawful in the light of the ECJ's case-law on internal neutrality requirements (see ECJ C-157/15 and C-188/15). The defendant's entrepreneurial freedom, which such a requirement of neutrality would in principle make possible, for example in a service company that is particularly dependent on the goodwill of its customers*, takes a back seat to the plaintiff's freedom of religion here, as the retail company's desire for neutrality is based solely on a subjective feeling of the defendant and contact with the already different customers* is very limited and thus the protection of the plaintiff's fundamental rights is preferable in this case.

The customer's wish not to have the services performed by an employee wearing a headscarf, no essential and decisive professional requirement within the meaning of this provision.

ECJ, Judgment of the Grand Chamber of the Court of First Instance of 14.03.2017, Bougnaoui and ADDH against Micropole SA, C-188/15

Ms. B. was employed as a software designer at Micropole SA and wears a Muslim headscarf. During her work she came into contact with customers both internally and externally. In June 2009 she received a letter of dismissal in which the company justified her dismissal with a customer's wish not to have the services performed by an employee wearing a headscarf.

Ms B. brought an action before the French Labour Courts against her dismissal and claimed discrimination based on her religious beliefs.

Finally, the French Court of Cassation referred the following question to the ECJ: Is Article 4(1) of Directive 2000/78/EC ("Unequal treatment based on occupational requirements") to state that the wish of a client of an informatic service provider, is no longer fulfilled by a provider in the client's name, which wears an Islamic headscarf?

In this respect, the ECJ points out that a characteristic related to religion can represent an essential and decisive occupational requirement only under very limited conditions. The mere will of an employer to meet the wishes of a customer not to have his services performed by an employee wearing an Islamic headscarf could not be regarded as an essential and decisive occupational requirement within the meaning of the Directive.

Headscarf ban at work as receptionist as company-internal rule ECJ, judgment of 14.03.2017, Samira Achbita et al. vs. G4S Secure Solutions NV, C-157/15

The appellant in the main proceedings, Ms A., worked under an open-ended contract as a receptionist in the service of the defendant, which provides, inter alia, reception and reception services to clients from the public and private sectors. At that time there was already an unwritten rule within the company according to which employees were not allowed to wear visible signs of their political, philosophical or religious convictions at the workplace.

After Ms A. had announced her intention to wear a headscarf in the future, the work regulations were adapted as follows: "Workers are prohibited from wearing visible signs of their political, philosophical or religious convictions at the workplace and/or from expressing any rite resulting therefrom". Ms A. was then dismissed for her firm intention to wear a headscarf at work as a Muslim.

Ms A. appealed against this before the Belgian courts. Due to ambiguities in the interpretation of European law, the Belgian Court of Cassation submitted a reference for a preliminary ruling to the European Court of Justice. The referring court wanted to know whether Article 2(2)(a) of Directive 2000/78/EC is to be interpreted as meaning that the prohibition on wearing an Islamic headscarf resulting from an internal rule relating to the general religious, philosophical and political neutrality of a private undertaking constitutes direct discrimination prohibited by that directive.

The ECJ denied the existence of direct discrimination by such a rule in this case. However, such an internal rule of a private company may constitute indirect discrimination within the meaning of Article 2(2)(b) of Directive 2000/78/EC if it is established that the apparently neutral obligation it contains actually results in persons of a particular religion or belief being particularly disadvantaged. An exception exists only if such an internal rule is objectively justified by a legitimate aim, such as the pursuit by the employer of a policy of political, philosophical and religious neutrality in relation to its customers, and the means of achieving that aim are appropriate and necessary.  

A general ban on headscarves for kindergarten teachers in communal day-care centres violates the freedom of religion

Federal Constitutional Court, decision of the First Senate of 18.10.2016, 1 BvR 354/11

The complainant, an educator of Muslim faith in a municipal day-care centre in Baden-Württemberg, wore a headscarf during working hours. As a result, she received a warning for violation of the institution's requirement of neutrality enshrined in § 7 para. 6 Kitagesetz Baden-Württemberg (now § 7 para. 8 KitaG BW). This prohibits specialist personnel, among other things, from making religious statements which are likely to endanger or disrupt the neutrality of the wearer or the political, religious or ideological peace in the institutions.

The complainant's constitutional complaint was directed against the warning as well as against the decisions of the Labour Court issued in this connection and indirectly against the former § 7 para. 6 KitaG BW.

The BVerfG found that the decisions of the labour courts violated the complainant's fundamental right to freedom of religion and belief under Article 4.1 and 4.2 of the Basic Law.

In the context of a constitutional interpretation of § 7.6 sentence 1 KiTaG BW, the characteristic of aptitude to endanger or interfere with the peace of establishment or the neutrality of the public institution must be restricted to the extent that the external religious manifestation must pose not only an abstract but also a sufficiently concrete danger to the objects of protection mentioned therein. The existence of the concrete danger must be proven and justified. The mere wearing of an "Islamic headscarf" as a religious commandment perceived as obligatory does not normally justify a sufficiently concrete danger in the kindergarten sector either. (see above, BVerfG, 27 January 2015, 1 BvR 471/10)

The BVerfG annulled the decisions of the lower court and referred the case back to the LAG Baden-Württemberg.

Having a "Positive attitude towards the goals of a Catholic institution" does not necessarily mean having to be baptized.

Labour Court Oldenburg, judgmentof 10.02.2016 - 3 Ca 334/15

The bearer of a Catholic hospital advertised the job position of a personnel officer and required a "positive attitude towards the foundations / aims of the Catholic institution". The plaintiff applied for the vacancy. After an interview, the Catholic priest decided to hire the plaintiff. During a further conversation between the parties, the manager of the hospital asked the plaintiff for her confessional membership. The plaintiff replied that she did not have such a membership and that she was not baptized. Thereafter she was informed that she could not be employed.

This behavior on the part of the Catholic hospital constitutes discrimination within the meaning of Section 7 subparagraph 1 of the AGG in conjunction with Section 1 and Section 6 subparagraph 1, sentence 2 of the AGG. The plaintiff was not hired solely on the grounds that she was not baptized and did not own a confessional membership. Pursuant to § 9, subparagraph 1 of the AGG, a different treatment on grounds of religion in employment is permitted by a body assigned to a religious community where a particular religion constitutes a justified professional requirement with regard to its right of self-determination or the nature of the activity.

According to the "basic order of ecclesiastical service within the scope of ecclesiastical employment relations" and the constitutionally protected right of self-determination of the churches according to the law, Art. 140 of the German Constitution in conjunction with Art. 137 subparagraph 3 of the WRV, the Catholic employer may presuppose membership of the Catholic religion. However, this applies only to employees who have pastoral, catechetical, educational or managerial tasks. Only employees of a person are required to be ‘loyal’. For this, neither a confessional affiliation must be given, nor must the employee be baptized.

The denominational institution of the hospital was sentenced to pay out a compensation of
€3,856.67 and a compensation for damages (§ 15 (1) AGG) of € 3,900.00 due to the discrimination caused by religion in the appointment procedure.

The appeal of the Catholic institution was rejected by the Labour Court in Niedersachsen on 14 December 2016 - 17 Sat 288/16.

Blanket prohibition of the use of headscarf for Muslim teachers in public schools is unconstitutional

Federal Constitutional Court, judgement of 27.01.2015 - 1 BvR 471/10 and 1 BvR 1181/10

The complainants, born in Germany, of Turkish descent and Muslim faith, are employees in public schools in North Rhine-Westphalia. During their work they wore a headscarf because of their own desire and religious conviction. After the entry into force of the School Act of North-Rhine Westphalia, the school authorities requested the teachers to take off their headscarf as a result of the provisions of section 57, subparagraph 4 of the NWC.

When they did not comply, they received a warning, and a complainant was even dismissed. On the other hand, they sued individually, with the labour courts, then appealed to national labour courts, until finally they reached the Federal Labour Court, where the North German-Westphalian School Act was deemed legitimate in prohibiting the wearing of headscarves:

"The wearing of the Islamic headscarf could jeopardize the school peace and give the impression that the complainant is against the human dignity, the equality of man and woman according to Article 3 of the Basic Law, the basic freedoms or the liberal democratic principle."

The two complainants filed appeals against constitutional complaints against decisions of the Federal Labour Court, which refer to this legal basis of the newly enacted School Act of North Rhine-Westphalia.

The Federal Constitutional Court objects to the Federal Labour Court in the detailed decision and establishes a violation of the fundamental right under Article 4 subparagraphs 1 and 2 of the Basic Law. A prohibition which would suffice to affect the peace of the state or the neutrality of the State is inappropriate and disproportionate with respect to the freedom of belief and freedom of religion; after all, there is no concrete danger to the former.

The right of individuals to direct their entire conduct to teachings of their faith and to act according to this conviction is protected by Article 4 of the Basic Law. "In this openness [against different religions and worldviews], the free state of the Basic Law preserves its religious and ideological neutrality."

Section 57 subparagraph 4 of the North Rhine-Westphalian school law constitutes a serious interference with the freedom of belief and confession, and is therefore not compatible with the constitution, i.e. void.

Contractually agreed loyalty obligations in church employment relationships continue to be subject to limited review by the state courts.

Federal Constitutional Court, Order of the Second Senate of 22.10.2014, 2 BvR 661/12

The complainant, a church-owned Catholic hospital, filed a constitutional complaint against a judgment of the Federal Labour Court in which it was decided that the dismissal of a chief physician pronounced by hospital was invalid as a violation of its faith-based expectations of loyalty due to his remarriage. (BAG, judgment of 08.09.2011, 2 AZR 543/10).

The complainant made a violation of the right of self-determination of the religious communities from Article 4 (1) and (2) of the Basic Law and Article 140 of the Basic Law in conjunction with Article 137 paragraph 3 WRV by the independent examination and evaluation of the dismissal of the chief physician by the BAG.

The BVerfG emphasized that only the standards recognized by the church and the concrete content of the employment contract are decisive for the church basic obligations existing based on the employment contract. The church's right to self-determination encompasses all measures formulated by the churches themselves which serve to ensure the church's and religious self-understanding and the preservation of the direct relationship of activity to the church's basic mission. In examining the grounds for dismissal, which may be based on a breach of a basic church obligation, the state courts may not disregard the church's self-image if this does not conflict with fundamental constitutional guarantees.

Only at a second examination stage are the fundamental rights of the employees concerned and their interests protected by general labour law to be reconciled with church interests and corporate religious freedom within the framework of an overall assessment.

The BVerfG referred the proceedings back to the BAG, which in its decision of 08.09.2011 "did not take sufficient account of the significance and scope of the right of ecclesiastical self-determination".

On 09.02.2017, the BAG then submitted a reference for a preliminary ruling to the European Court of Justice concerning the interpretation of Art. 4 para. 2 subpara. 2 of Directive 2000/78/EC (Equal Treatment in Employment and Occupation) on the admissibility by the Church of church loyalty obligations and the distinction according to denomination of senior employees by the Church. (EuGH, C-68/17) The EuGH issued a ruling on 11.09.2018 that the requirements of an ecclesiastical institution for the loyalty obligations of its employees must be subject to effective judicial control. He states that the requirement for a Catholic chief physician to observe the sacred and indissoluble character of marriage in the understanding of the Catholic Church does not appear to be an essential, legitimate and justified professional requirement.

In detail, however, the German Federal Labour Court had to decide on this and, in doing so, to examine whether the ecclesiastical institution had shown in this case that the risk of an impairment of its ethos or of its right to autonomy was probable and considerable.

The judgment is not yet final.

Living out religion in the workplace

European Court of Human Rights, judgement of 15.01.2013, Case of Eweida and others vs the UK, 48420/10, 59842/10, 51671/10 and 36516/10

The European Court of Human Rights had to decide on four different facts concerning the living out of the complainants' religion in the workplace: One complainant, who worked in check-in at an airline, wanted to visibly wear a chain with a cross during working hours, another complainant worked as a nurse in geriatric care and also wanted to wear a chain with a cross. One complainant, a civil registrar, refused on religious grounds to register same-sex partnerships within the framework of partnerships. A complainant who worked as a couple therapist refused to care for homosexual couples on religious grounds. The respective employers of the complainants took measures to prevent the wearing of the cross and the refusal to cooperate with same-sex couples.

The complainants thereupon asserted a violation of their right to freedom of religion under Article 9 of the European Convention on Human Rights by Great Britain and British national law.  

The ECHR makes it clear that religious freedom is one of the foundations of a democratic society and that any restriction of this freedom must have a legal basis and pursue a legitimate aim, so that a balance must be struck between the interests of both sides. Regarding the first complainant, the ECtHR found that the courts of origin had given too much weight to the private employer's concern to convey only a certain image of the company. With regard to the other complainants, the Court assumed a more serious weighting of the employer's interests, with the complainants' behaviour leading to disruptions in the employment relationship which the employers did not have to accept.

Rejection of an IT administrator in the archbishop's administration justified on grounds of lack of religious Labour Court Cologne, judgement of 22.02.2013, 1 Ca 6290/12

In November 2011, the defendant advertised a position in the IT administration of the archbishop's administration. The plaintiff applied for the position and, upon request, informed the defendant that he did not belong to the Christian religion. As a result, the defendant informed the plaintiff that it will not fill the position.

The plaintiff thereupon made a claim for compensation pursuant to § 15 (2) AGG, since he saw in the rejection an unjustified discrimination § 7 Para. AGG, § 1 („religion“).

The action was dismissed as unfounded.

Although the plaintiff was discriminated against on the basis of religion pursuant to § 7 (1) AGG, this was a justified pursuant to § 9 (1) AGG. Accordingly, different treatment on the grounds of religion or belief is permissible when employed by religious communities and similar institutions if membership of a particular religion or belief, taking into account the self-image of the respective religious community or association, represents a justified occupational requirement with regard to its right to self-determination or the nature of the activity. Since the position advertised by the defendant would have provided the plaintiff with intensive insights into the innermost structure of the church administration, it had to be granted the right to self-determination in accordance with Article 140 of the Basic Law in conjunction with Article 140 of the Basic Law. Art. 137 WRV to fill this position in a legally permissible manner solely with an employee who has Catholic religious affiliation.

Undenominational Nurses cannot be fired due to the fact that they have no denomination

Labour Court Aachen, judgment of 13.12.2012 - 2 CA 42236/11

The plaintiff, a professional nurse, applied to a job advertisement, published by the defendant - a Catholic Church community that operates a hospital. During the interview, he was praised for his experience and qualifications, and the head of the station informed him that there were no reservations about his attitude. The question of his religious affiliation did not arise. It was only when it was learned that the plaintiff held no denomination that he was informed that this was a problem and that he could therefore not be hired.

There is a different special treatment reserved for religion and its conduct, justified according to Section 9 subparagraph 1 of the AGG. However, according to the basic order of the Catholic Church, confession is only a prerequisite if it is a question of the faith and morality of the Catholic Church, or whether educational or executive tasks are part of the activity in question. The activity of a nurse requires only a loyalty, that is, the tasks in the sense of the church have to be fulfilled.

The defendant did not consider the overall condition of the nurse’s place within the job. In failing to do so, they solely focused on the lack of a religious affinity. The disadvantage is therefore not justified according to Section 9 subparagraph 1 of the AGG in connection with the basic order of the Catholic Church.

The defendant was sentenced to pay the plaintiff a compensation payment of € 3,000.

No trainee position because of headscarf

Labour Court of Berlin, judgment of 28.03.2012 - 55 Ca 2426/12

A Muslim woman applied for a job vacancy of a dental assistant in a dental office. On the application photo she wore a headscarf, which covered her entire hair. During the interview she was asked if she could imagine removing the headscarf during the working hours. Her answer was negative. Although she would have been hired for the dental office, an actual placement was not considered for the reason that wearing a headscarf did not suit the dress code or/and that a headscarf is no neutral garment. Thus, she was rejected. 

Such a conduct constitutes discrimination on grounds of religion which is forbidden according to § 7 par. 1 AGG. The present case cannot be considered as an exception of § 8 par. 1 AGG, according to which the employer may treat the plaintiffs differently when there are special job requirements because of the nature of the work or the conditions of its exercise.

The plaintiff shall receive compensation of 1,470.00 EUR.