Job advertisements asking for church membership tend to be discriminatory

In a judgment dated 25 October 2018 the Federal Labour Court (docket number 8 AZR 501/14) ruled that religious employers are no longer allowed to ask all applicants for membership of a Christian church in job advertisements. Unequal treatment on grounds of religion is only permissible if, according to the nature of the activities or the circumstances of their exercise, religion constitutes a substantial, legitimate and justified work-related requirement in light of the ethos of the religious employer.

The defendant, a Protestant Church employer, had publicly advertised a temporary part-time position as a consultant for an anti-racism research project. The job advertisement explicitly stated that membership in a Christian church is required. The non-denominational plaintiff applied for this job but wasn´t invited to a job interview. The defendant filled the position with a Protestant applicant.

The plaintiff requested at least five monthly salaries as compensation according to section 15 para. 2 General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz). The defendant denied discrimination on grounds of religion; in any case, claimed that the unequal treatment is justified according to section 9 para. 1 General Equal Treatment Act.

The Labour Court granted the plaintiff a compensation of one monthly salary. The Higher Labour Court of Berlin (28 May 2014 – docket number 4 Sa 157/14, 238/14) deemed the unequal treatment justified and dismissed the compensation claim in total.

On appeal, the Federal Labour Court suspended the proceedings and referred the matter to the European Court of Justice (17 April 2018 – docket number C-414/16). As a result of this decision, the plaintiff’s appeal was then partially successful. The defendant is obliged to pay compensation in the amount of two monthly salaries.

The unequal treatment on grounds of religion was not justified by way of exception. Section 9 para. 1 alt. 1 General Equal Treatment Act, according to which Church employers could determine whether a particular religion of a candidate constitutes a substantial, legitimate and justified professional requirement, must remain unapplied since it contradicts Art. 4 para. 2 of the anti-discrimination Directive 2000/78/EC. Thus justification only takes place if the religion is a substantial, legitimate and justified work-related requirement in light of the ethos of the religious employer.

In the case at hand, the Federal Labour Court seriously questions the substantiality of the work-related requirement. However, in any case, asking for church membership is not justified. There was no probable and significant risk that the defendant’s ethos would be compromised. The applicant would be involved in an internal opinion-forming process with the defendant and thus could not act independently in questions concerning the defendant’s ethos.

The decision will lead to a reorientation and review of the recruitment and personnel policies of Church employers in Germany. The question of whether a church membership is a substantial, legitimate and justified work-related requirement for a job position will be effectively controlled by the state (labour) courts in the future.