German Employment Case Focuses on Religious and Ethnic Discrimination

Author: Justice Initiative
Date: 13 July 2008

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German Employment Case Focuses on Religious and Ethnic Discrimination

Amsterdam, July 14, 2008—The Open Society Justice Initiative today challenged religious and ethnic discrimination in a brief the organization filed in an employment case in Hamburg, Germany.

The case concerns a Christian charity, Diakonisches Werk Hamburg (DWK), which refused to hire a non-Christian woman unless she converted to Christianity. The applicant, a German citizen of Turkish ethnic origin, does not observe or practice any religion and refused to convert. The woman was applying for a non-religious position counseling immigrants, as part of a secular advice service that DWK provides on behalf of the German state. DWK acknowledges that the applicant met all substantive requirements for the job.

Under German and European Union antidiscrimination law, religious institutions may treat individuals differently on the basis of religion only when religious faith is a genuine occupational requirement for a job, such as that of a pastor or a religious teacher. But this exception clearly does not apply in the DWK case, the Justice Initiative asserted in its filing. Click on the icon at right to read the Justice Initiative's brief, available in English or German.

In 2007, the Hamburg City Labor Court held that the job applicant had been a victim of religious discrimination. But DWK appealed the decision and the case is currently pending before the Hamburg Regional Labor Court. In its brief, the Justice Initiative argues that the applicant is also a victim of indirect ethnic discrimination because DWK's employment requirements have a negative, disproportionate impact on the great majority of Germans of ethnic Turkish origin.

"The victim in this case has been discriminated against twice," said Robert O. Varenik, acting executive director of the Justice Initiative. "The employer has in effect ruled out employing all non-Christians, which includes most people of ethnic Turkish origin, even though this is not a religious job. Under the logic of the DWK's position, they could require their accountants, or their cleaning crew, to convert to Christianity. This is unlawful."

The case hinges on how Germany has implemented the Race and Employment Equality Directives of the European Union. Loopholes in the German statute enacted to implement the Race Directive, the General Equal Treatment Act of 2006, appear to give religious organizations too much room to pursue discriminatory employment practices, according to the Justice Initiative. As a result, the Justice Initiative is urging the court to refer the case to the European Court of Justice (ECJ) in order to clarify the very restricted circumstances under which differential treatment is justifiable.

"For the sake of ensuring consistent and effective antidiscrimination laws across the European Union, the ECJ must clarify where the line is to be drawn. This is not for employers to decide as they see fit," said Varenik.

The Justice Initiative's project on contemporary forms of discrimination in Europe promotes litigation to combat racial, ethnic, and religious discrimination in European Union states. It seeks to empower victims of discrimination to use advanced antidiscrimination legal protections before national, regional, and international tribunals. The project pursues cases that address systemic problems and can generate significant public impact beyond the courtroom.

Contact: Maxim Ferschtman:             +31-20 773 3871        (Amsterdam).

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