Imagine if the gist of a job advert was: ‘Temporary assistant wanted for our church anti-race discrimination project! Only Christians devoted to our mission need apply’. Such a bigoted advert would discriminate on grounds of religion directly against non-Christians, and indirectly against Christians unable to accept that particular church’s mission but would the advert be illegal for the purposes of EU law?
In 2012, an NGO wanted to employ an assistant for its anti-race discrimination project. The NGO published an advert which also contained a couple of criteria. First, candidates had to be a member either of the German Evangelical Church (to which the NGO belonged), or a church that was in the German Christian Churches Association. Second, candidates had to accept the mission of the church.
Having rejected the application of one of the applicants, the NGO is being sued by that person for illegal discrimination on grounds of religion. The NGO denies liability and relies on the exceptions mentioned in Article 4(2) of Directive 2000/78/EC.
The relevant provisions in the Directive provide:
Concept of discrimination
1. For the purposes of this Directive, the “principle of equal treatment” shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1.
2. For the purposes of paragraph 1:
(a) direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1;
1. Notwithstanding Article 2(1) and (2), Member States may provide that a difference of treatment which is based on a characteristic related to any of the grounds referred to in Article 1 shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.
2. Member States may maintain national legislation in force at the date of adoption of this Directive or provide for future legislation incorporating national practices existing at the date of adoption of this Directive pursuant to which, in the case of occupational activities within churches and other public or private organisations the ethos of which is based on religion or belief, a difference of treatment based on a person’s religion or belief shall not constitute discrimination where, by reason of the nature of these activities or of the context in which they are carried out, a person’s religion or belief constitute a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos. This difference of treatment shall be implemented taking account of Member States’ constitutional provisions and principles, as well as the general principles of Community law, and should not justify discrimination on another ground.
Provided that its provisions are otherwise complied with, this Directive shall thus not prejudice the right of churches and other public or private organisations, the ethos of which is based on religion or belief, acting in conformity with national constitutions and laws, to require individuals working for them to act in good faith and with loyalty to the organisation’s ethos.
The dispute has been escalated all the way up to the Federal Labour Court. On hearing the parties, Judge Schlewing and four other judges on the bench decided to make a preliminary reference to the CJEU.
According to the Curia website, the German Bundesarbeitsgericht has asked:
1. Is Article 4(2) of Directive 2000/78/EC […] to be interpreted as meaning that an employer, such as the defendant in the present case, or the church on its behalf, may itself authoritatively determine whether adherence by an applicant to a specified religion, by reason of the nature of the activities or of the context in which they are carried out, constitutes a genuine, legitimate and justified occupational requirement, having regard to the employer/church’s ethos?
2. If the first question is answered in the negative:
In a case such as the present, is it necessary to disapply a provision of national law — such as, in the present case, the first alternative of Paragraph 9(1) of the AGG (Allgemeines Gleichbehandlungsgesetz, General Law on equal treatment) — which provides that a difference of treatment on the ground of religion in the context of employment with religious bodies and the organisations adhering to them is also lawful where adherence to a specific religion, in accordance with the self-conception of the religious body, having regard to its right of self-determination, constitutes a justified occupational requirement?
3. If the first question is answered in the negative, further:
What requirements are there as regards the nature of the activities or of the context in which they are carried out, as genuine, legitimate and justified occupational requirements, having regard to the organisation’s ethos, in accordance with Article 4(2) of Directive 2000/78/EC?
It is not clear to me what this job precisely entails. Equally, I do not know what the phrase ‘identifies with the church’s mission’ means. For whereas the Catholic Church is officially a member of the Association of German Christian Churches (Arbeitsgemeinschaft Christlicher Kirchen in Deutschland), it might be expected that German Catholic candidates would be less likely to be able to accept the ethos and doctrinal interpretations that govern German Evangelical Churches.
Perhaps this preliminary reference from the Federal Labour Court will sit in the CJEU’s ‘In-Tray’ for some while. Currently, there are two cases involving religious discrimination and the two Advocates General involved seem to have produced Opinions that are difficult to reconcile; see further, Case C-188/15, Bougnaoui – wearing an Islamic headscarf in the information society.