Germany: Headscarf-ban can constitute a discrimination based on religion

The Federal Labor Court confirmed a previous decision of a state court that ruled in favor of a muslin applicant who had filed a compensation claim because of discrimination based on religion. The plaintiff applied for a teaching position at the state of Berlin. Upon being asked during the application process, she explained that she would wear a headscarf during class. In the further application process she never received a response to her application. Thereupon, she sued the state Berlin for compensation under the General Equal Treatment Act (AGG).

The state Berlin argued that the constitution of Berlin prohibits wearing religious symbols and clothing while teaching. However, pursuant to a prior ruling of the Federal Constitutional Court, prohibiting religious symbols based on a merely abstract threat for school-peace or neutrality of the state is disproportionate. Only if an individual assessment shows an actual threat, the freedom of religion can be restricted by prohibiting wearing a headscarf.

In light of this, the Federal Labor Court found that the application of the plaintiff was not successful because of a discrimination based on religion, which is a violation of the prohibition of discrimination under the General Equal Treatment Act. The court found that no specific threat for the school operation was apparent in the concrete case, and then applied the abovementioned prior ruling of the Constitutional Court, whereas prohibiting religious symbols is disproportionate in cases where there are only abstract concerns for school-peace or neutrality. Thus, for lack of justification of the discrimination, the plaintiff was entitled to compensation, which was set at an amount equaling 1.5 monthly salaries of the salary for the position she had applied for.

This ruling has raised some concerns regarding the scope courts may apply when interpreting the constitution. It is at least questionable whether the Federal Labor Court was actually allowed to rule or should have submitted the case to the Federal Constitutional Court. Furthermore, as the full justification of the verdict is still outstanding, it remains to be seen which behavior of the state of Berlin the court actually considered discriminatory, since the applicant never received an answer to her application. If the court considered this omission itself discriminatory, this would result in a factual obligation for employers to respond to any application.

For more information on these articles or any other issues involving labour and employment matters in Germany, please contact Dr. Tobias Pusch (Partner) of Pusch Wahlig Workplace Law at pusch@pwwl.de or visit www.pwwl.de.

For more information please contact Joseph Granato, Communications Manager at L&E Global at joseph.granato@leglobal.org.