Religious discrimination in the workplace

"Classrooms should have crucifixes, not headscarves", this statement from a politician has reignited the debate about religious freedom. During this ongoing debate, the voices of workers and employees are also raised. Because, especially at work, many people have to experience discrimination based on the religion they practice. But where does religious discrimination in the workplace begin? What are the rights of those affected? The fact is: you don’t have to and shouldn’t put up with everything! We give you valuable info around the topic, and how you should act if you are discriminated against at work because of your religion.

Initial advice on employment law

What does religious discrimination mean in the workplace??

Discrimination means that people are treated worse or disadvantaged because of certain characteristics. These characteristics can look quite different. For example, people may be treated differently solely on the basis of their ethnic origin, gender, sexual identity, disabilities, worldview, or even religious views. Cases of religious discrimination can occur anywhere – on the street, in the supermarket, but also at work. In the work environment, religious discrimination can start as early as the application process. If applicants are previously "sorted out" solely on the basis of religious characteristics If a religious requirement is not met, it can be considered religious discrimination in the workplace in most cases. Affected persons often feel helpless because they do not know exactly how to approach this issue. However, unlike in the past, religious discrimination in the workplace is taken much more seriously. The legal framework for this has been created primarily by the General Equal Treatment Act (AGG). The aim of the law is "to prevent or eliminate discrimination on the grounds of race or ethnic origin, gender, religion or belief, disability, age or sexual identity" (§ 1 AGG)." What should be noted here, however: Not every discrimination is prohibited. And not every disadvantage constitutes discrimination. The AGG describes in more detail when discrimination is allowed and when it is not.

Permissible religious discrimination in the workplace

The prohibition of discrimination in § 1 AGG is very generally worded. On further reading, however, one comes across individual cases in which discrimination is permissible after all. The § 9 of the AGG states with regard to religious beliefs: Different treatment is permissible "if a particular religion or belief is a justified occupational requirement, taking into account the self-image of the respective religious community or association with regard to its right to self-determination or the nature of the activity." Accordingly, a justified job requirement would be, for example, the following case: a Protestant church is looking for a pastor, or. a pastor. An atheist applicant is rejected because he or she does not meet the professional requirements. Here it can be said that a "justified" professional requirement is not fulfilled. Unequal treatment is therefore permissible in this case.

Not permissible religious discrimination in the workplace

Although these exceptional cases exist, the employee can generally rely on the Basic Law (GG). For Art. 4 of the German Basic Law enshrines the right to Free exercise of religion. The employer therefore needs a valid reason to be able to prohibit religion in the workplace. He must prove that the employee’s religious attitudes are incompatible with company requirements. However, these are individual cases. For example, it would not be permissible to pay an employee a lower salary simply because he or she is a Muslim. This is definitely a case of religious discrimination.

A new study by the Anti-Discrimination Agency makes clear that almost one in three people in Germany has experienced discrimination in recent years. About a quarter of them experience this discrimination because of their religious affiliation and world view.

The employer may prohibit the practice of religion in the workplace?

In principle not. The free exercise of religion is a fundamental right, which is entitled to each person. In Article 4 of the GG is that Right to free exercise of religionanchored. On top of that, the AGG Discrimination on the basis of religion in the workplace. However, there are exceptions to the rule – depending on where and for whom one works. For example, an employer can prohibit the wearing of religious symbols if the employee could be injured by them. Especially when working with heavy machinery, wearing a chain or headscarf can be dangerous. In addition, employers also have a certain Claim to religious neutrality. This means that if there is an operational need to appear neutral to the outside world, the wearing of headscarves, necklaces and the like may be permitted. are forbidden. However, this claim is less likely to be enforced in the private sector due to a lack of factual grounds. At the state level, however, things look different. Particularly in the judiciary, great importance is attached to neutrality. Because in particular here it is to be avoided that due to religious symbols the employee becomes attackable. Because the assumption can quickly arise that the bearer of the symbol is biased or can be influenced. The church or its sponsors, on the other hand, take the practice of religion very seriously. Employees who work for these institutions have to comply not only with state employment law, but also with additional employment laws church regulations to be held. The duty of loyalty to the church is therefore written in capital letters. Employees who do not comply with these obligations can often be ruled out of order. In fact, in some cases, a breach of loyalty can even lead to the dismissal of the employee.

Church as an employer – the crux of church law

In fact, the church has a special position in labor law. The so-called duty of loyalty to the church can even partially extend into the private life of the employee. Accordingly, leaving the church, openly living homosexuality or even remarriage after divorce can mean dismissal for the employee. But why do such special rules apply to church employers? After all, the church is the largest employer in Germany after the state. Almost 1.5 million people work for or indirectly with the church. These include, above all, church-run hospitals, kindergartens and homes. The "problem is that ecclesiastical law partly overrides the generally applicable clauses in employment contracts. The AGG also speaks of Different treatment, who in some cases also permissible can be. However, in recent years a change can be seen in the labor courts. Time and again, there are disputes about how far the churches’ right to issue directives can go. Increasingly, pro-employee rulings are being issued that take precedence over the self-determination of churches. The following case has also caused quite a stir.

Religious discrimination in the workplace: The case

In 2000, the Catholic plaintiff took up his position as head physician in a Catholic hospital. In 2005, he separated from his first wife. A year later, in 2006, he met his new partner. The divorce took place three years later, in early 2008. In the same year, he married his new partner in a civil ceremony. The defendant, in this case the hospital, did not agree at all with this remarriage and dismissed the head physician. According to the defendant, a remarriage under the present circumstances would speak against the ethos of the company. The head physician then finally took the matter to the Regional Labor Court (LAG). With judgement from 01. July 2010 (Az. 5 Sa 996/09), the LAG decided that the dismissal was justified. The reason: The new marriage is invalid under church law. Why? The head physician entered into a new relationship even though the divorce had not yet been legally finalized. According to the Catholic legal understanding, this is a violation of the duty of loyalty to the church. This is what the Catholic Church law says: "According to Catholic law, an invalid marriage is one that is bound by the bond of a previous marriage. A new marriage is also not allowed if a previous marriage has been annulled or dissolved for any reason, the annulment or. but the dissolution of the former marriage has not yet been legally and certainly established, (Can. 1085 § 2 CIC.)" However, it has not come to a final decision – although the case has dragged on for more than 10 years. Finally, the BAG turned to the highest judicial body of the European Union – the European Court of Justice (ECJ). Accordingly, an Advocate General of the European Court of Justice was commissioned to issue an opinion regarding this case.

Religious Discrimination in the Workplace: The Previous Decision

The Advocate General of the European Court of Justice stated in the opinion: The dismissal of the chief physician is not justified. He lets it be known that the dismissal violates the ban on discrimination. Moreover, in his opinion, there is "no probable or significant risk of ethics being compromised".

This view was subsequently also upheld by the ECJ in a judgment (Az. C-68/17). Unequal treatment is only legal if, in the specific case, it is "an occupational requirement that is essential, lawful and justified in view of the ethos of the church or organization in question, and complies with the principle of proportionality.".

In other words, the patient can expect medical ability from a chief physician, but whether he adheres to the sacrament of marriage or not should not play a role at this point. The BAG adhered to the ruling and ruled in favor of the chief physician after a protracted legal battle. The termination was declared invalid.

You too were a victim of religious discrimination? Then draw the line now! Practice shows that religious discrimination in the workplace in any form occurs again and again. Many cases do not even go to court, because most of the people concerned "only" want it as a joke at the expense of others. However, religious discrimination is more than a little teasing and can cause psychological as well as physical damage to the person concerned. German courts are increasingly taking the issue more seriously. More and more consumer-friendly rulings have already been issued that give no place to religious discrimination in the workplace. They are confused and do not know what to do now? Then describe your case. Thus you create clarity and can decide how it should go on.

When religion is visible: Wearing a headscarf

This small piece of matter is always discussed. Whether in political discussions or in private life – everyone has an opinion about it. Wearing a headscarf is mainly associated with women of the Islamic faith. It is often forgotten that the headscarf has a worldwide significance for women of different religions. Even in Germany, especially in rural areas, it was not uncommon for women to wear headscarves until the 1980s. Also, the tradition of wearing a veil at the wedding does not come from anywhere. However, it is almost exclusively Islamic women with headscarves who have to deal with religious discrimination in the workplace. And that already starts in the application process. Unfortunately, these are not assumptions, but the current reality on the labor market. Numerous studies can underpin this grievance, including one from the Research Institute on the Future of Work (IZA). In this study, 1.sent out 500 fictitious job applications to companies. The content of the application was identical. However, the woman applied once with German name and without headscarf and once with headscarf and Turkish name. The result: In 19% of the cases the woman without head cloth got a positive message, the same woman with head cloth in only 4% of the cases.

Muslim woman with headscarf achieves landmark ruling

In the summer of 2011, the Berlin woman applied for an advertised position in a dental practice as a dental assistant. As a result, the young woman, who had just graduated from high school, was invited to a job interview. The interview went very well, according to her own statements. The hiring dentist was also convinced of the applicant and her qualifications. However, the dentist had one thing wrong with her – her headscarf. When asked if she could simply take off her headscarf at work, the applicant replied that she would not do so. However, the dentist did not let up. In the further course of the application procedure, the young woman was finally offered the apprenticeship via e-mail, but on condition that she remove her headscarf at work. Because of this disclosed religious discrimination, she asked a lawyer for help. The matter went to court.

The Berlin Labor Court upheld the Plaintiff in a ruling in March 2012 law. The defendant was ordered to pay the plaintiff, jointly and severally, compensation of 1.470 euros to be paid. The reason: The religious discrimination could be specifically determined by the e-mail in which it was stated that the applicant would only be hired if she took off her headscarf. The court also did not regard the defendant’s statement that its employees had to wear uniform clothing as a reason. The headscarf could easily be combined with uniform white clothing. In addition, the headscarf does not pose an increased health risk in the workplace. After all, a headscarf does not transmit dirt or pathogens to a greater extent, at least not more than one’s own hair. According to the ruling, there was no sufficient reason to prohibit the young Muslim woman from wearing a headscarf. The main sentence of the verdict sums up the religious discrimination that occurred.

If an applicant is excluded from the group of candidates to be considered even before the application process has been completed because she states, when asked by the potential contractor, that she does not want to take off her headscarf even during working hours, the applicant is discriminated against because of her Muslim religious affiliation.

Berlin Labor Court, ruling v. 28. March 2012 (Az. 55 Ca 2426/12)

Discrimination Religion: Prayer allowed in the workplace?

Praying at work mainly affects people who are required to pray more often because of their faith. This is the case, for example, with people of the Islamic faith. Very religious Muslims pray up to five times a day. This ritual is one of the most important religious duties of Muslims. However, conflicts can arise if prayer and work collide with each other. However, not every conflict has to lead to litigation. Although the Federal Office for Migration and Refugees (BAMF) estimates that around 4.4 million Muslims live in Germany, there are correspondingly few cases before the courts dealing with the issue of "praying at the workplace" deal with. This assumes that employees and employers often find a solution to combine work time and prayer time. Prayers are often said during breaks at work, or five minutes are taken for prayer instead of a coffee or smoking break. However, not every employer is so loyal in this regard. And according to court decisions, the employer also has to be loyal only to a certain point. The prime example of this went before the Hamm Regional Labor Court in 2002.

Judge rules: Prayer is allowed during breaks

The case: The case at hand involved an employee of Muslim faith (plaintiff here) who was warned off by his employer. The reason: During working hours he repeatedly withdrew for a few minutes to pray. He justified this with the fact that praying belongs to his religious duties. According to his own statements, he had been making these short breaks for prayer for six years. The plaintiff stated that in winter his prayer times fall into his working hours due to the position of the sun. The employer granted these "extra breaks" however, are not. The plaintiff wanted to obtain a three-minute break by injunction. The case went all the way to appeal to the state labor court in Hamm, Germany.

The decision: The court decided to dismiss the appeal. The main reason was that according to the Islamic doctrine of faith, prayers can also be made up for. So the plaintiff was told to make up for his prayers during official breaks. According to the court’s decision, the Basic Law, which guarantees the undisturbed practice of religion, does not reach. Here, the leading sentence of the judgment states:

An employee does not waive his fundamental rights under Art. 4 para. 1 and Abs. 2 GG, because he had to expect at the time of the conclusion of the employment contract that the proper performance of his duties under the employment contract could collide with his obligations to his faith.

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