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2008-10-29 - Employment appeal tribunal of Hamburg, n. 3 Sa 15/08

Workplace · Germany · Faith-Based Organisation · Recruitment

Applicants for employment are discriminated under the General Equal Treatment Act (AGG) only if they are at least objectively qualified for the employment

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 is part of the Protestant Church in Germany. 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 they ought to be members of a Christian church. The claimant had neither a degree nor had she obtained an admission degree for higher university studies at all. The defendant turned down the claimant’s application for employment. Accordingly, the claimant asks compensation according to § 15 AGG (General Equal Treatment Act). She argues that she was discriminated on ground of her religion and ethnic origin.

Main reasoning of the court - The prerequisite for § 15 II AGG compensation is a breach of the prohibition of discrimination (on ground of 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 fully qualified with regard to the employment advertisement. 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. Accordingly, she is not qualified for the employment and could not be discriminated in the context of this employment advertisement.

Comment - Discrimination on the ground of religion is excluded if the core area of religion self-determination by the institution is affected. E.g.: It follows that if a person with theological profile is needed, a non-Christian cannot be discriminated by being ignored during the recruitment procedures. Discrimination has to be examined with regard to the category of employment in detail.

See also: 2010-08-19 - Federal Labour Court, n. 8 AZR 466/09.