“The ruling from Luxembourg is a groundbreaking signal for equality,” says Florian Zimmermann, President of the Humanist Association of Germany, which represents the interests of non-religious people as a recognized worldview community. “It not only protects the 1.3 million employees of church organizations in Germany from the discriminatory labor law practices of the churches, but also members of other denominations and worldviews. The principle of equality must also apply to churches.”
The background to this is the case of the head internist at the Catholic Vinzenz Hospital in Düsseldorf, who was dismissed in 2008 after entering into a second marriage for violating his duty of loyalty and breaching the indissolubility of marriage. The German judiciary has been dealing with this case for years. The Catholic doctor had taken legal action against his dismissal on the grounds that colleagues of other world views had not been dismissed in comparable cases. He initially won his case in the lower courts and at the Federal Labor Court (BAG), but in 2014 the Federal Constitutional Court overturned its ruling with regard to the churches’ right to self-determination. The case went back to the BAG, which then turned to the European Court of Justice (ECJ).
The ECJ has now come to the conclusion that the requirement for doctors to observe the sacred nature of marriage according to Catholic understanding is not to be considered an essential, lawful and justified professional requirement. At the same time, the court refers to the prohibition of religious discrimination enshrined in the EU Charter of Fundamental Rights, which “as a general principle of Union law is of a mandatory nature”. The Federal Labor Court will now have to decide on the specific case again in light of this ruling.
Update:
The Federal Labor Court in Erfurt ruled on 20.02.2019 that the head physician had been unlawfully disadvantaged by his church employer compared to non-Catholic colleagues.
The court’s statement reads:
The duty of loyalty not to enter into a marriage that is invalid according to the understanding of faith and the legal order of the Catholic Church was not an essential, legitimate and justified professional requirement in view of the nature of the plaintiff’s activities and the circumstances in which they were carried out.
Discrimination is also prohibited under German labor law. The General Equal Treatment Act (AGG) stipulates that people may not be discriminated against on the grounds of origin, gender, religion or ideology. However, Section 9 AGG provides an exception for religious communities. Churches in Germany may also invoke the church’s right to self-regulation and self-administration if they treat their employees differently on the basis of religion or belief or refuse to employ members of other beliefs. Institutions run by church organizations are therefore currently permitted in principle to require their employees to conform to church beliefs and morals, including membership. This leads to an exclusion of employees that goes far beyond the limits of legitimate protection against bias.
It should be borne in mind that churches and their charitable organizations together form the fourth largest employer in Germany. 60 percent of all jobs in the social sector are provided by church organizations. Non-denominational employees and employees of other faiths do not have the same access to this huge employment sector as members of the Christian churches. And this is despite the fact that church facilities are often financed entirely from public funds, i.e. the funds of all contributors, and through user fees (daycare fees, additional payments for care costs, etc.).
