Federal Labour Court (BAG) confirms church membership as a permissible condition of employment

Facts of the case

An organisation of the Evangelical Church in Germany (EKD) advertised a fixed-term position as a project officer for the ‘Parallel Reporting on the UN Convention on the Elimination of All Forms of Racial Discrimination’ project. The successful candidate was to prepare an independent report on Germany’s implementation of the UN Convention on the Elimination of All Forms of Racial Discrimination, draft statements and specialist articles, and represent Diakonie Deutschland in dealings with politicians, the public and human rights organisations. The requirements included membership of a Protestant church or a church belonging to the Working Group of Christian Churches in Germany (ACK), as well as identification with the diaconal mission.

A non-denominational female applicant applied unsuccessfully for the post – she was not invited to an interview. The church organisation filled the position with a Protestant applicant. The applicant felt she had been disadvantaged because of her lack of church membership and sought compensation under the General Equal Treatment Act (AGG).

The decision

The Federal Labour Court (BAG) ruled in favour of the employer. Whilst the requirement for a specific religious affiliation in a job advertisement could, in principle, indicate discrimination on the grounds of religion, differential treatment is permissible in church-run organisations if church membership constitutes an essential and justified professional requirement for the specific role.

In the court’s view, there must be a specific link between church membership and the duties of the post. The decisive factor is whether the requirement is suitable, necessary and proportionate for the fulfilment of the church’s mission. In this context, the church’s right to self-determination must be given special consideration as part of the necessary balancing of interests.

The Federal Labour Court (BAG) considered this link to be present in the present case. The advertised post involved not only the drafting of reports, statements and specialist articles, but also representing Diakonie Deutschland in dealings with politicians, the public and human rights organisations. In the court’s view, the church organisation was therefore entitled to require that the post be filled by a person who could credibly represent the organisation’s Christian-based positions and values to the outside world. On a generalised assessment, church membership was deemed suitable for ensuring the necessary commitment and Christian socialisation.

In weighing up the church’s right to self-determination against protection against discrimination, the Federal Labour Court (BAG) considered the requirement of church membership to be justified – whilst the BAG expressly emphasised that this conclusion was not based on a general primacy of church interests, but on the specific assessment of the individual case. The applicant was therefore not entitled to compensation.

Consequences for practice

The decision provides clarity for church employers. It confirms that church membership may continue to form part of a job profile. At the same time, a mere reference to the church’s right to self-determination is not sufficient. An objective link between the specific role and the required religious affiliation remains necessary.

Particularly for roles with a public profile or a close link to the church’s mission, the requirement for church membership is likely to be more readily permitted in future. Blanket requirements, however, remain impermissible.

Practical tip

Church employers should, before including a requirement for church membership, assess and document why this is necessary for the specific post. The specific duties of the post are decisive. If the post involves representational duties, has a particular public profile or is closely linked to the church’s mission, this should be clearly described in the job advertisement and the job profile.

Selection decisions should also be carefully documented. The more clearly the link between the role’s requirements and the required church membership can be demonstrated, the easier it will be to justify the decision in the event of a dispute. Blanket references to the church’s right to self-determination are not sufficient for this purpose.