Germany: A job advertisement by an ecclesiastical employer may not require a particular denomination from the applicant as a general recruitment requirement
In 2012, a nondenominational social pedagogue applied for a position as a consultant for a project at a Protestant relief organization. According to the job advertisement, membership in the Protestant Church or membership in a church belonging to the Association of Christian Churches in Germany was required. The intended tasks included the public representation of the Protestant relief organization and coordination of the internal opinion-forming processes. The applicant was not invited for an interview and received her application documents back after one year. The position was given to a Protestant candidate.
The applicant sued the Protestant relief organization for payment of compensation in the amount of almost 10,000 Euros based on the German General Equal Treatment Act (AGG). The plaintiff was of the opinion that she had been disadvantaged by the defendant because of her denomination and therefore did not receive the job. The defendant considered the discrimination to be justified.
The German Federal Labor Court asked the EJC for an interpretation of the European Council’s anti-discrimination directive from 2000. The anti-discrimination directive provides that churches may impose a requirement related to religion or belief. This presupposes that religion or belief, according to the nature of the activity or the circumstances under which it is carried out, “constitutes a genuine, legitimate and justified occupational requirement, having regard to the ethos of the organization”.
Following the ruling of the EJC on the present case in April 2018, the German Federal Labor Court obliged the defendant to pay the plaintiff compensation in the amount of 3,915.46 Euros. The court found that the applicant had been discriminated against on the grounds of religion and that this discrimination was not justified. In particular, the court held that the discrimination could not be justified by Sec. 9 (2) German General Equal Treatment Act, as this provision could not be interpreted in accordance with EU law. Sec. 9 (2) German General Equal Treatment Act provides that the prohibition of differences in treatment based on religion or belief shall be without prejudice to the right of the religious communities, their associated institutions or associations with the purpose of communal maintenance of a religion or belief to demand from their employees loyal and sincere conduct in the spirit of their respective self-understandings.
In the present case, the court had considerable doubts as to whether the requirement of membership in the Protestant Church or membership in a church belonging to the Association of Christian Churches in Germany was essential for the advertised position. In any case, the requirement was found to be not justified. In the specific case, there was no probable and significant risk that the ethos of the Protestant relief organization could have been compromised because the consultant could not act independently in matters relating to ethics. The court found that a compensation in the amount of 3,915.46 Euros was reasonable in this individual case.
