Religious belief can only be a valid recruitment condition for churches or other religious institutions if the employment position relates to the religion’s ethos (CJEU)
On 17 April, the Court of Justice of the European Union handed down a ruling on a case submitted by a job candidate who failed to secure employment with the German Protestant Church due to the fact that the candidate had not stated any specific religious belief.
Religious organizations can state that religious affiliation is an essential occupational requirement in order to be a credible job applicant, however it is up to the relevant national level courts to verify if the requirement in question is justified by ‘the nature of the occupational activity concerned or the circumstances in which it is carried out, and cannot cover considerations which have no connection with that ethos or with the right of autonomy of the church or organization.’
The case in question concerns an applicant for a position with an organization belonging to the Protestant church who believed she was subject to discrimination based on religious grounds during the recruitment process. The job applicant in question had replied to a fixed term job offer published by the organization and concerned a project for producing a parallel report on the United Nations International Convention on the Elimination of All Forms of Racial Discrimination. From among the conditions expressed, job applicants had to be a member of ‘Working Group of Christian Churches in Germany or the Association of Protestant Free Churches’. The complainant argued that taking into account the applicant’s religious affiliation during the recruitment procedure as evidenced by the details of the job offer, ran counter to the ban on discrimination as intended in German law that has been transposed from the EU Directive 2000/78 of 27 November 2000, which addresses a general framework for equal treatment in terms of employment and work.
In line with the EU Directive, German law allows for different treatment based on religious belief when religious belief is an essential legitimate and justified occupational requirement for carrying out the occupation. However for the CJEU, this justified difference in treatment ‘is subordinate to the existence of an objectively verifiable direct link between the occupational requirement as set by the employer and the activity in question.’ The CJEU adds that such a direct link may follow either from the nature of the activity, for example where it involves taking part in the determination of the ethos of the church or organization in question or contributing to its mission of proclamation, or else from the circumstances in which the activity is to be carried out, such as the need to ensure a credible presentation of the church or organization to the outside world. It is thus for the national courts to verify if the requirement to belong to a religion or to hold to the beliefs upon which the church’s or organization’s ethos is based is justified ‘by the nature of the occupational activity concerned or the circumstances in which it is carried out’. The ‘requirement cannot cover considerations which have no connection with that ethos or with the right of autonomy of the church or organization’ and it must comply with the principle of proportionality.