The Question of Exceptional Admissibility of a Difference of Treatment at the Workplace on Grounds of Religion in the Latest Case Law of the Court of Justice

Abstract

The Equal Treatment in Employment and Occupation Directive (Directive 2000/78/EC) prohibits discrimination at the workplace resulting from a difference of treatment on grounds of religion. Nevertheless, the Directive makes it possible for the Member States to provide that a difference of treatment on grounds of religion does not amount to discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, a characteristic of belonging to a religion constitutes a genuine and determining occupational requirement, provided that the objective of allowing the difference of treatment is legitimate and the requirement is proportionate. In two recent German preliminary ruling cases (Cases C-414/16 Egenberger and C-68/17 IR) the Court was asked to check whether a church can require under the
Directive an employee or a candidate either to be affiliated to that church or to act with loyalty to the ethos of the latter. In particular, the Court was to examine whether the case law of the German Constitutional Court, which allows the German courts
to carry out a mere plausibility test in order to establish whether the arguments invoked by a church as an employer to justify a difference of treatment on grounds of religion are well founded, was compatible with the Directive. By its judgments in those cases, [Judgments of 17 April 2018 (C-414/16) and 11 September 2018 (C-68/18)] the Court ruled that the judicial control of compliance with the provisions of the Directive relating to the occupational requirements that may justify a difference of treatment on grounds of religion cannot be limited to a review of plausibility but should amount to an effective judicial review.