Key facts of the case - The claimant is a German Muslim with Turkish origin. The defendant is the “Diakonisches Werk” (a major non-government and non-profit welfare organization) which belongs to the German Protestant Church. In the year 2007 the defendant applied for a social pedagogue position (social education worker). The employment advertisement required a complete study in social science or social pedagogy from the applicants. Moreover the applicants ought to be members of a Christian church. The claimant has neither a degree nor has she obtained an admission degree for higher university studies at all.
The defendant rejected the claimant’s application for employment. Now the claimant asks for compensation according to § 15 AGG (General Equal Treatment Act). She argues that she was discriminated for religious reasons and because of her ethnic origin.

Main reasoning of the court - A first instance decision in favour of the claimant was handed down in 2007 by the Labour Court of Hamburg. Her appeal was nevertheless rejected by the Employment appeal tribunal of Hamburg in 2008.
The appeal of the claimant is here again rejected by the Labour court, without being compensated. The prerequisite for § 15 II AGG compensation is an offense against the prohibition of discrimination. Reasons of discrimination can be race, ethnic origin, sex, religion or ideology, disability, age or sexual identity.
Basically an applicant can only be discriminated in recruitment procedures if he/she is qualified according to the employment advertisement at all. In the present case the claimant never completed studies in social science or social pedagogy. She does not even have an admission decree for higher university studies. Thus she is not qualified for the employment and could not be discriminated in the context of this employment advertisement.

Comment - Discrimination for reasons of religion is excluded if the core area of religion self-determination by the institution is affected. More precisely, if there is a need for theological personnel, a non-Christian cannot be discriminated against by being ignored during the recruitment procedures. Discrimination has to be assessed in the category of employment in detail.