Religious organisations do not enjoy a free hand to discriminate bet­ween prospective em­ployees on the basis of their religious beliefs. Certain eligibility criteria for employment set out by such organisations may very well be subject to the scrutiny of the courts in order to ensure that there is no unlawful discrimination on the basis of belief, Advocate General Evgeni Tanchev has recently opined.

EU law makes provision for the equal treatment of EU citizens at the workplace regardless of their religion or belief, disability, age or sexual orientation. It is therefore illegal for employers or prospective employers to discriminate, whether directly or indirectly, against a particular employee or a prospective employee on the basis of the grounds alluded to above. This applies to both the public and private sector.  However, EU law does provide for certain exceptions to the general rule. It allows national laws to stipulate that, where there is a difference of treatment on any of these grounds by reason of the nature of a particular job or of the context in which it is carried out, such inequality would not constitute discrimination if there is a genuine and determining occupational requirement which warrants it.

This is the case only if the objective being pursued by the employer is legitimate and the requirement is proportionate. Also, when an employer has an ethos based on religion or religious belief, and the nature of the employment or the context in which it is carried out constitutes a genuine and legitimate justification for the employer to require that such work is carried out by a person embracing particular religious beliefs, it is permissible for the employer to exercise difference of treatment based on religion or belief. The element of proportionality comes into play once again here.

The facts of this particular case which came before the Court of Justice of the European Union (CJEU) were briefly as follows. A female candidate applied for a job advertised by an auxiliary organisation of the Protestant Church in Germany that is governed by private law, and which exclusively pursues charitable, benevolent and religious purposes.

The job, which was for a fixed term of 18 months, entailed preparing a report on Germany’s compliance with the United Nations International Convention on the Elimination of All Forms of Racial Discrimination. This included public and professional representation of the organisation and coordination of the process of forming opinions within that organisation. The advertisement required membership of a Protestant church or of a church which is a member of the Cooperative of Christian Churches in Germany.

National courts ought to take into consideration a number of factors

The candidate was not given the job and she alleged that the reason was that she does not belong to any religious community. She therefore filed proceedings before the German courts claiming damages on the grounds that she had been discriminated against on the basis of belief.

The German national court filed a preliminary reference before the CJEU requesting the latter for guidance as to whether a court could in terms of EU law review the right of religious organisations to set out certain occupational requirements in view of their ecclesiastical privilege of self-determination. It also sought guidance as to how a balance could be struck between the competing interests at stake, namely freedom of belief and the right not to be discriminated against on the basis of religion or belief on the one hand, and the right to self-determination and autonomy of religious organisations on the other.

Advocate General Tanchev observed that EU law makes provision for a special rule which applies to situations like the one under examination and which determines when religious organisations can lawfully engage in unequal treatment on the basis of belief.  The criteria which need to be examined in such cases is whether by reason of the nature of the activities in question and the context in which they are carried out, a person’s religion or belief constitutes a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos.

The AG noted that an employer, such as the organisation in the case in question, may not authoritatively determine itself whether adherence by an applicant to a specified religion, by reason of the nature of the activities in question or of the context in which they are carried out, constitutes a genuine, legitimate and justified occupational requirement, in view of the employer’s ethos. This means national courts are entitled to assess the activities in question against the ethos of a religion, to determine whether a person’s religion or belief constitute a genuine, legitimate and justified occupational requirement.

The AG acknowledged that the right of religious organisations to autonomy and self-determination is a fundamental right that is recognised and protected under EU law. Hence, the law’s reference to the ‘ethos’ of religious organisations, is to be interpreted in conformity with this fundamental right.

In conducting their review, national courts ought to take into consideration a number of factors. Courts must assess whether occupational requirements supporting direct discrimination on the grounds of religion or belief are appropriately adapted to the protection of the right of the religious organisation to autonomy and self-determination, in the sense that they are suitable for the purpose of attaining such an objective. They must also examine the proximity of the job in question to the declared mission of the religious organisation. The impact on the legitimate aim of upholding the principle of non-discrimination on the basis of religion or belief is to be weighed against the right of the religious organisation to its autonomy and self-determination in order to ensure proportionality at all times.

The AG’s opinion is not binding on the CJEU. Nonetheless, this opinion serves as a clear reminder that the law does not give a carte blanche to religious organisations to discriminate on the basis of religion or belief when it comes to employment. A delicate balance must be maintained at all times between the right of the organisation to safeguard its ethos and that of employees or prospective employees not to be discriminated against on the basis of religion or belief.

Mariosa Vella Cardona M’Jur, LL.D., is a freelance legal consultant specialising in European law, competition law, consumer law and intellectual property law.

mariosa@vellacardona.com