How far can German churches discriminate against over a million employees? (2014)

No one disputes that pastoral care and preaching may be confined to those who satisfy the religious requirements of the churches ― but what of doctors, nurses, teachers, secretaries, janitors and cleaners? At present the German churches are able in many cases to refuse to hire and also to fire such employees for having the “wrong” religious beliefs or even for loving the “wrong” people, like those who are gay or divorced.

On 18 August 2006 Germany’s antidiscrimination law (AGG) finally came into effect. The opposition of the churches had held this up until three years after the deadline set by the European Union, leading the European Court of Justice to condemn Germany for non-compliance with its Directive. [1]

“Church clause” justifies continued discrimination in Germany

 In the final draft of the German law clerics managed to get a “church clause” inserted which offered exemptions to the huge social service empire of the churches. This clause, §9, says that religious institutions should “be able to demand from their employees a loyal and upright behaviour in the sense of their particular understanding of themselves”. According to Germany's highest court, only the churches themselves can determine how their employees should act to conform to this.  

This means that German labour courts can be faced with two sets of opposing rights, both of which are anchored in the Constitution: the church employees’ right to personal freedom (art. 2.1) and the right of the churches to regulate themselves as they see fit. (art. 140 re art. 137.3 WRV) This “church article” imported wide-ranging concessions from the 1919 Constitution and it forms an important pillar of the power of the German churches today.

In the case of conflict the labour courts must take as the basis the predetermined church criteria for judging the contractual obligation of loyalty. As a matter of principle it is left to the churches concerned to determine in a legally binding manner what “the credibility of the church and its mission demands” and what the “essential principles of the doctrinal and moral teaching” are and what is to be regarded as a serious breach of these. [2] 

Since German courts must take the churches’ word on what seriously violates their principles German court rulings sometimes cite laws (canons) of the Catholic Church (and Lutheran Church doctrines, as well). Thus German labour courts can become the agents for enforcing Canon Law.

Below are some examples of court cases challenging the churches, right to demand “loyalty” ― or to practice discrimination, according to one's point of view. In 2012 a German website finally began listing such cases, and has posted links to articles about church control over employees, from late 2011, at a site whose name means “Against religoious discrimination in the workplace”: http://www.gerdia.de/node/11

♦ Fired for letter to the editor advocating liberalised abortion laws (upheld 4 June 1985)

Two women doctors in a Catholic hospital were fired for a letter to the editor (signed by 50 others) in favour of liberalising the abortion law and disputing comparisons with mass murder in Auschwitz. The Federal Labour Court had ruled against the hospital, but the Constitutional Court said that the “duty of loyalty” to Church employers outweighed the labour laws of Germany. [3] This landmark judgement by the highest court in Germany is cited in many later judgements which have since then let the churches dismiss those whose private life offends them. 

♦ Fired from Protestant hospital for leaving the Catholic Church (upheld 26 May 2003)

A Catholic nurse was fired, even though she was so severely disabled that, although it was undisputed that she could do her present job, she'd likely have trouble finding a new one, especially at her age. The level of concern of this church-run hospital for her plight can be gathered for the fact that it hadn't fulfilled its legal obligation to hire 6% disabled employees. It had only 1.8% (and presumably would have even less after she left).

The court judgement justified her firing under the “church articles” of the German Constitution, in conjuction with the Protestant hospital's mission “to preach the Kingdom of God and to heal”. No question about her ability to heal, as she was responsible for a whole nursing station. However this placed her in a “leading” role and that worked against her in court: 

“If a church-run hospital demands that its (leading) employees belong to a Christian church and sees leaving the church as a violation of the duty of loyalty which justifies a firing, then this comes under the churches' right to self-determination.” [4]

By firing a Catholic for leaving the church the huge Protestant social service agency was shoring up its right to fire its own members for leaving. Otherwise, a Protestant employee could complain of unequal and therefore discriminatory treatment with regard to Catholic colleagues, as happened in the last case mentioned here.   

♦ Fired for remarrying before annulment came through (upheld 16 September 2004)

A Catholic parish church fired a musician when it was discovered that he’d remarried before his annulment had been granted. The Federal Labour Court ruled that this was a grave breach of loyalty to his employer since it violated canon 1085 §2. [5] In 2010 the European Court of Human Rights overturned this: “Europe tells German churches to respect employees’ private lives”. 

♦ Fired for leaving the Catholic Church (upheld 30 March 2006), five years of legal struggle to recover unemployment benefits 

An employee of a Catholic hospital was fired for leaving the Church. Her unemployment insurance payments were suspended for 12 weeks and the state-level social court ruled that this was justified, as she had knowingly caused herself to lose her job. [6] After five years of litigation she managed to recover this money from the state, [7] but there was no question of her recovering her job since leaving the Church violates canon 209 §1 and, according to canon 751, implies grave sins such as heresy, apostasy or schism. In Catholic Canon law these, in turn, cause excommunication which prevent membership in any Catholic organisation. [8] 

 Antidiscrimination law (AGG) takes effect 18 August 2006. 
German courts argue that ECHR rulings on discrimination only apply to German cases filed since the German law came into effect. [9]

♦ Employee can’t be fired for searching for a (gay) partner (ruling 23 April 2007)

The Catholic charity, Kolping Society, fired an employee, claiming that his profile in an online gay chat room was incompatible with Catholic moral teaching. However, the the Kolping Society's claim that  he had posted a naked photo was found to be untrue. The Frankfurt Labour Court also noted that in an earlier lawsuit this same branch of the Kolping Society had sought to justify paying an employee less than the church tariff by claiming it was not under Church control.

 When the ruling was handed down, his employer announced that it had already filled his old position, claimed there was no comparable job for him elsewhere and said it was considering an appeal. [10] However, a couple of weeks later, after the gay organisation LSVD called for the dismissal of the Kolping Society director for mounting this slander campaign, [11] the Catholic charity backed down, revoked the firing and announced that it wouldn't be appealing the sentence. [12] 

♦ Employer couldn’t prove job required “loyalty” (ruling 4 December 2007)

The Protestant charitable organisation, Diakonisches Werk, in Hamburg advertised a job counselling migrants in a special project. A woman of Turkish ethnicity, no longer a practising Muslim, applied and was asked if she'd care to join the Church. She replied that she saw no need for this, as she would be a counselor on migrant labour and integration and this job had nothing to do with religion. The Diakonisches Werk refused to hire her and also refused to pay her compensation, claiming that they were exempt under the “church clause” ( § 9.1 AGG).

However, the Hamburg Labour Court decided that religious discrimination was not permitted here because among other reasons: 
— the fact that the employer had a religious ethos was not relevant here and thus the employer couldn't show why only a Church member could handle the project (an appeal to § 8.1 AGG) 
— the project was financed by the German Federal Government and also by the European Union. [13]

♦ Strikes banned in church social service institutions (ruling 3 March 2010)

After the Protestant social service organisation Diakonisches Werk refused to enter wage negotiations, a strike took place in May 2009. The strike was ruled illegal because:
— the Constitution states that churches have a right to run their own affairs (a remarkable application of the principle of religious freedom in order to ban strikes) 
— the churches can't counter strikes with lockouts because this would violate their doctrinal and moral teaching, [14] (even though this permits the churches to pay their employees up to 30% less than required by German labour law) [15] (See Under God’s roof) 

♦ Lost job for anonymous “defamation” of the Pope (ruling 21 October 2011)

A male nurse in a hospital run by Caritas, posted online under a pseudonym what he described as “satire”  aboout the Pope. When his identity was discovered he was threatened with the immediate loss of his job and this was used to get him to sign an agreement to end his employment. The court denied him three months' unemployment payments on the grounds that he was responsible for losing his job. It ruled that by criticising the Pope he had attacked the Catholic Church itself and had seriously violated his duty of loyalty to his employer. [16]

♦ Court reinstates nurse fired for not joining church when Protestant charity took over workplace 

In November 2011 it was reported that employees of a welfare centre were told to join the Protestant Church after their workplace was handed over to a Protestant charity. Of the four who had not already done so, one left, two quickly joined the church as ordered and the fourth went to court. The nurse who had worked at the centre for 32 years said, “I don't need a church to be a Christian”. Of course, it was in the financial interest of the church to disagree. Even though the court upheld the nurse, the charity's threats served to open up one position that it could legally fill with a church member, and forced two more to join the church and contribute “church tax”. [17] 

♦ Popular pushback: Catholic Church fires teacher, then the town fires the Church (2012-2013)

A teacher in a Catholic kindergarten for finding a new partner after she obtained a legal separation from her husband. Then something unprecedented happened: the town fired the Church. The parents of the well-regarded teacher persuaded the town, which owns the building and pays 100 percent of the kindergarten's costs, to cancel its contract with the Catholic Church. [18]

The town then found a new and somewhat more liberal organisation to take over the kindergarten and with it, the fired teacher. This has solved her problem, but as it is the new administration of the kindergarten is the Protestant (Lutheran) Church, religious requirements still apply: you still have to be a baptised Christian. [19] 

♦ Court upholds the firing of a Caritas employee for leaving the Catholic Church (25 April 2013)

The woman tended children who were not selected according to religion in an afterschool programme that did not teach religion. Even so, she had to go. [20] 

♦ Supreme Court confirms the right of the Church to fire a senior doctor at a Catholic hospital who remarried  (22 October 2014)

After the doctor won the right Federal Labour Court to be reinstated [21], the Supreme Court argued that the lower court hadn't sufficiently respected the constitutional provision for recognised religious bodies to exercise "self-determination". [22]

Despite difficulties on the ground the Catholic Church maintains its constitutional stranglehold on employees' private lives

The picture that emerges from these cases is of a very limited application of the new antidiscrimination law. Its “church clause” loophole appears to have secured for religious institutions their right to continue to largely regulate their own employees, for instance by denying them collective bargaining and compelling them, in the case of church membership and remarriage, to lead their private lives according to church norms.

The Catholic Church fights here for legal recognition of its constitutional rights over its employees — even though on the ground, it increasingly can't use them. 

First, Church meddling in the private lives of its employees is meeting increasing resistance. More sacked employees are suing and in 2012-13 (above) a town actually defended a fired teacher by removing its kindergarten from the control of Catholic Church.

Second, the Church, and especially its chaitable arm, Caritas, is having a hard time finding skilled Catholics who are willing to submit to the "loyalty" pledge. In fact, sometimes Church institutions even prefer to employ Protestants or Muslims because, in practice, they are not obliged to conduct their private lives in accordance with Church doctrines. [23] 

The German Catholic bishops have found a way out of this impasse that still retains their constitutional clout. They are pressing ahead with reform of a Church labor law that would allow employees who are in gay relationships or remarried to work in Church-run institutions. [24]

And this new "inclusiveness" in terms of employment would also make it easier for the same groups, gays and the remarried, to be allowed the sacraments and therefore pay church tax.

Notes

1. Judgment of the Court (Fourth Chamber) of 23 February 2006 — Commission of the European Communities v Federal Republic of Germany (Case C-43/05)
(Failure of a Member State to fulfil its obligations — Directive 2000/78/EC — Equal treatment in employment and occupation — Failure to transpose within the prescribed
period) (2006/C 131/41)
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2006:131:0023:0023:EN:PDF

2. Bundesarbeitsgericht, 16 September 2004  (2 AZR 447/ 03). http://lexetius.com/2004,3571

3. Bundesverfassungsgericht,  4 June 1985 (2 BvR 1703/83) http://www.servat.unibe.ch/dfr/bv070138.html

Excellent summary of this case and another, with extensive paraphrasing of the Federal Constitutional Court ruling and with the reaction of the (former) large labour union, ÖTV:
Rolf Heinrich, “Freie Meinungsäußerung? Nicht bei der Kirche!” MIZ 3 (July-September), 1992. http://www.ibka.org/artikel/miz92/grundrecht.html

4. Verwaltungsgerichtshof Baden-Württemberg, 26.May 2003 (9 S 1077/02) http://www.ekd.de/staatskirchenrecht/html/voll.php3?ID=527&Table=Aktuell

5. Bundesarbeitsgericht, 16 September 2004 (2 AZR 447/ 03). http://lexetius.com/2004,3571

6. Landessozialgericht Rheinland-Pfalz, 30 March 2006 (L 1 AL 162/05). http://www.sozialgerichtsbarkeit.de/sgb/esgb/show.php?modul=esgb&id=55195 

See also the press release of the Landessozialgericht Rheinland-Pfalz, 9 May 2006. https://www.lexisnexis.de/rechtsnews/lsg-rheinland-pfalz-verwirklichung-der-religionsfreiheit-rechtfertigt-nur-ausnahmsweise-aufgabe-des-arbeitsplatzes-92830

7. Bundessozialgericht, 29 May 2008 (B 11a AL 63/06 R). On appeal, the federal-level social court, ruled that her religious freedom outweighed the damage this precedent could set to the country's unemployment insurance scheme and reversed the actions of the Government employment office which had been upheld by the state-level court..

See also a lawyer's summary: Michael W. Felser, Sperrzeit wegen Kündigung nach Kirchenaustritt, 8 June 2008. http://www.mitarbeitervertretungen.de/aktuelles-mitarbeitervertretungen/artikel/sperrzeit-wegen-kuendigung-nach-kirchenaustritt/index.html 

8. Conference of Polish Bishops, 27 September 2008, Rules governing the formal act of defection from the Church, #1, #3, #9. http://www.concordatwatch.eu/topic-39611.843 

However, the German bishops announced in 1993 that they'd be slightly more flexible and would consider the religious status of the employee at the time of hiring and the gravity of the violation of Church norms. Despite this, if a Church employee was Catholic when he began work, and then leaves the Church, he's fired. For more detail see:
“Revision des Dienstrechtes” (Frankfurter Allgemeine, 18. u. 24.9.93; Pressedienst der Deutschen Bischofskonferenz, undatiert), http://www.kirchensteuer.de/news1993.html 

9. Niels Sorrells, “Court: Catholic hospital must rehire divorcee”, Religion News Service,
12 September 2011. http://ncronline.org/news/global/court-catholic-hospital-must-rehire-divorcee

10. Arbeitsgericht Frankfurt, 18 April 2007.

Arnold Tomaschek: “Heimleiter darf trotz Partnersuche weiterarbeiten”, Spiegel, 18 April 2007. http://www.spiegel.de/panorama/justiz/0,1518,478135,00.html (This article, dated the same day as the ruling, is one-sided as it quotes lies told by the Kolpingwerk director.) 
“Kolpingwerk verliert Arbeitsgerichtprozess gegen schwulen Mitarbeiter”, Wikinews, 23 April 2007.  http://de.wikinews.org/wiki/Kolpingwerk_verliert_Arbeitsgerichtprozess_gegen_schwulen_Mitarbeiter 

11. Sascha Dillenkofer, “Rufmordkampagne des Kolpingwerks”, LSVD online, 20 April 2007.
http://www.lesbe.de/611+M5491bde300c.0.html

12. Thorsten Dütsch, “Kolpingwerk will schwulen Mitarbeiter offenbar wieder einstellen”, GAYS about, 5 May 2007. http://www.enjoycoke.de/magazin/newsticker/kolpingwerk-will-schwulen-mitarbeiter-offenbar-wieder-einstellen/

13. http://www.soros.org/initiatives/justice/litigation/fadia

14. Arbeitsgericht Bielefeld, 3 March 2010 (3 Ca 2958/09)

“ArbG Bielefeld: Streit um Streik in der Kirche”, Press release of the Bielefeld Labour Court, 16 June 2010. https://www.personalpraxis24.de/aktuelles/?aktuelles_id=182945

15. Herbert Wulff, “Arbeitsgericht Bielefeld untersagt ver.di Arbeitsniederlegungen bei der Diakonie: Kirchenrecht bricht Streikrecht”, Junge Welt, 05 March 2010. http://www.indymedia- letzebuerg.net/index.php?option=com_content&task=view&id=44996&Itemid=1

16. Landesozialgericht Baden-Württemberg, 21 October 2011 (L 12 AL 2879/09) http://www.kostenlose-urteile.de/LSG-Baden-Wuerttemberg_L-12-AL-287909_Witze-ueber-den-Papst-rechtfertigen-Kuendigung-und-Sperre-fuer-Arbeitslosengeld.news12496.htm

17. Frank Bühl, “Religionsfreiheit: Krankenschwester darf weiterarbeiten”, Heidenheimer Zeitung, 9 November 2011. http://www.swp.de/heidenheim/lokales/kreisheidenheim/Religion-Kirche-evangelische-Religionsfreiheit-Arbeitsgericht-Arbeitsrecht;art1168195,1205842

18. Lisa von Prondzinski, “Streit um Privatleben von Erzieherin: Die Kita, die Kirche und die Kündigung”, Westdeutscher Rundfunk, 20 March, 2012. http://www1.wdr.de/themen/panorama/kindergartenkuendigung100.html

19. Eva Müller, “Getauft für den Job”, Spiegel, 14 January 2013.
http://www.spiegel.de/karriere/berufsleben/kirche-als-arbeitgeber-angestellte-lassen-sich-fuer-den-job-taufen-a-876868.html

20. “Kündigung wegen Kirchenaustritts”, Bundesarbeitsgericht, 25 April 2013, (2 AZR 579/12). http://juris.bundesarbeitsgericht.de/cgi-bin/rechtsprechung/document.py?Gericht=bag&Art=pm&pm_nummer=0029/13

21. Bundesarbeitsgericht, 8 September 2011 (2 AZR 543/10) http://juris.bundesarbeitsgericht.de/cgi-bin/rechtsprechung/document.py?Gericht=bag&Art=pm&Datum=2011&nr=15406&pos=0&anz=69

Jochen Leffers, “Katholische Kirche: Arbeitsrichter kippen Chefarzt-Entlassun”, Spiegel, 8 September 2011. http://www.spiegel.de/karriere/berufsleben/0,1518,785229,00.html

22. Pressemitteilung Nr. 103/2014 vom 20. November 2014, Beschluss vom 22. Oktober 2014. https://www.bundesverfassungsgericht.de/pressemitteilungen/bvg14-103.html 

23. Wolfgang Thielmann, “Sieg vor Gericht bringt katholische Kirche in Not”, Zeit, 20 November  2014. http://www.zeit.de/gesellschaft/zeitgeschehen/2014-11/katholische-kirche-arbeitgeber-bundesverfassungsgericht 

24. Edward Pentin, “Germany's Catholic Bishops Face Resistance Over Labor Reform”, Breitbart News Network, 25 November  2014. http://www.breitbart.com/Big-Peace/2014/11/25/Germany-s-Catholic-Bishops-Face-Resistance-Over-Labor-Reform