THE END OF SPECIAL RIGHTS FOR THE CHURCH?

1. The problem
Equal treatment is not only becoming more and more important since #metoo a few years ago, but has influenced the European Union for nearly 20 years. On June 2000 the Council Directive 2000/43/ implemented the principle of equal treatment between persons irrespective of racial or ethnic origin into European Law. Since then more and more European and German Laws were brought into force to promote equal treatment between the sexes, ethnicities, religions, disabilities, ages and sexual identities.
A special role has so far been assigned to the churches in Germany. Since German constitutional law grants them the right to regulate their affairs independently, the churches were allowed to treat their employees differently on the basis of their religion alone, even if this would be regarded as discrimination in all other branches of the economy.
This special right was relevant in the case decided by the Federal Labour Court (Bundesarbeitsgericht, BAG) on 20 February 2019. The plaintiff, who was head doctor in a hospital owned by the Roman Catholic Church, fought against his dismissal, which was based on the fact that the doctor got divorced and married a second time, which was seen as a breach of internal church regulations. The plaintiff, however, argued that these rules were applicable to him only because he was Roman Catholic; if he was an atheist or a member of another religion, he would not have been dismissed by the Church for such a reason. Since the former jurisdiction stated that such an internal church regulation is covered by the churches’ right to conduct their affairs independently, such that different treatment on the basis of religion was legitimate, it was very unclear how the BAG would decide..
The BAG then consulted the ECJ as to whether the special right of the churches would violate European discrimination law (in particular Council directive 2000/78/EG). On September, 11 2018 (docket-number: C-68/17 [IR/JQ]). The ECJ decided that all acts of the churches, which may constitute discrimination, must be subject to judicial review. This means, that the churches can no longer only claim their special right to independently manage their affairs, but have to give plausible cause, why discrimination is justified by an essential, legitimate and justified vocational requirement in the light of the ethos of the churches.
The BAG then had to decide whether the second marriage of the head doctor and therefore the breach of the internal church regulation would constitute such an essential, legitimate and justified vocational requirement in the light of the ethos of the churches.

2. The decision
The BAG decided, that the discrimination of the head doctor in comparison to non-religious head doctors would not be justified by such special reason.
The Roman Catholic Church had been arguing that the employee was bound by special duties of loyalty as he was working as head doctor in a hospital owned by the church. Especially because the employee worked as an oncologist, he represented the Roman Catholic Church in a special way, which presupposed that he had to adhere to the church’s moral laws in his free time as well. Even though non-religious head doctors in hospitals do not have to obey the special duties of loyalty in such a way, this could not be seen as discrimination, as the position of trust of those doctors was significantly different. Furthermore, the duties of loyalty of the other employees of the hospital could no longer be properly enforced if not even the head doctor had to comply with them.
The court pointed out, that the church’s argument was based on the fact that there are special duties of loyalty. However these duties would only arise from the employee being a part of the Roman Catholic Church and not out of his work as head doctor. The church’s argument that breaking its moral codex by marrying a second time would also cause a violation of the duties of loyalty and therefore justify a dismissal,does not take into account, that such duties of loyalty are only applicable on Roman Catholic head doctors. Since there are head doctors working in hospitals of the Roman Catholic Church who are not members of this religion and are therefore not bound by these particular duties of loyalty based on the church’s moral code, these duties could not be essential to the work of a head doctor. Rather the Roman Catholic Church would place higher demands on employees, that are member of its religion than for other employees, only because of their religion and use these higher demands to justify a dismissal. This would, however, only justify discrimination with more discrimination.

3. The impact
The impact of the decision is enormous. The first verdict of the BAG to this matter had been overturned by the German Supreme Court, the second time the BAG consulted the ECJ, and therefore caused a conflict with the Supreme Court, as European Law can supersede even German constitutional law.
This verdict does not mean that the churches in Germany have to treat all employees equally even in respect to their religion. Rather the churches have to be able to establish why discrimination is really necessary. The causes for this discrimination have to be based onto the type of work, not on a general moral codex. Therefore e.g. rejecting an atheist applicant for the job of a priest will not be considered unjustifiable discrimination, because being a member of the Roman Catholic Church is an essential, legitimate and justified vocational requirement in the light of the ethos of the church for the work of a priest.