Church employment law is still in flux. The European Court of Justice (ECJ) and now also the Federal Labor Court (BAG) have made important decisions that employees of church employers should be aware of. We explain the decisions here.
Is discrimination justified?
Are church employers allowed to require their employees to be members of the respective religious community? In the case of the non-denominational plaintiff Egenberger, the Federal Labor Court (BAG) submitted a request to the European Court of Justice (ECJ) in 2016 to have the Anti-Discrimination Directive (Art. 4 II Directive 2000/78/EC) interpreted. The ECJ had ruled that religious affiliation may only be required under certain conditions. We have reported on this elsewhere.
Following the ECJ’s decision, the BAG had to clarify how the ECJ’s discussions should be applied to the specific case of Ms. Egenberger. It issued a ruling on this on 25.10.2018 (Ref.: 8 AZR 501/14).
The Egenberger case briefly summarized
Vera Egenberger had filed a lawsuit because she had applied for a job at an organization of the Evangelical Church in Germany in 2012 and was not invited to an interview. She was not a member of the Protestant Church. Apart from that, however, she fulfilled all the requirements of the job advertisement. The position was filled by a Protestant applicant.
Ms. Egenberger felt discriminated against and demanded compensation of just under €10,000.
View of the ECJ
The ECJ had ruled that churches may, in principle, impose special religious requirements on their applicants. However, according to the ECJ, this is only legitimate if there is sufficient justification. Religious affiliation must constitute an essential, lawful and justified occupational requirement with regard to the specific activity carried out. The ECJ derived this from Art. 4 II Directive 2000/78/EC. The German provision of Section 9 para. 1 Alt 1 AGG does not provide for such a reservation and is therefore not in line with European law in the opinion of the ECJ. The German regulation can only be used as a justification for discrimination on the condition that the regulation is interpreted in accordance with EU law.
Discrimination in the application procedure not justified under Section 9 I AGG
The BAG now had to answer the question of whether the job holder’s membership of the Protestant church was an essential, lawful and justified requirement for carrying out the advertised position. According to the judges from Erfurt, this is not the case.
The main aim of the advertised position was to work out how the UN Convention against Racism has been implemented in Germany. In addition, the post holder was to represent Diakonie Deutschland in relation to politics, the public and human rights organizations on a project-related basis and work in committees.
The employee should be involved in an internal opinion-forming process at the employer. He or she should not be able to act independently in matters relating to the employer’s particular ecclesiastical ethos.
According to the BAG, this means that the professional requirement was not justified in the specific case. There is no particular risk that the church’s self-image would be impaired if an employee who is not Protestant were to hold the position.
The BAG awarded the plaintiff compensation in the amount of two gross monthly earnings, i.e. specifically just under € 4,000.00, due to these considerable doubts about the materiality of the occupational requirement.
Revision only a partial success?
With regard to the amount of compensation, the BAG’s ruling can be seen as a partial success. The plaintiff had demanded € 10,000 and has now been awarded “only” just under € 4,000.00.
In view of the legal implications of the decision, however, this point is likely to be of secondary importance. The BAG consistently implements the requirements of the ECJ and creates a guidepost for future case law with its ruling. Above all, church employers must in future pay very close attention to whether the requirements they place on future employees are really essential, lawful and justified in the specific case.
To some extent – but only to some extent – church employers have already adapted their recruitment practices to the new conditions. Applicants and employees in church institutions should continue to keep an eye on this. If a church employer discriminates against employees or applicants because of their religious affiliation or lack thereof without this being justified by the specific professional requirements of the job in question, they can take action against this and, if necessary, claim compensation.