AGG and Tendency Employers: Section 9 + Religion + Church

Scope of this article: what is set out here is the German special rule in § 9 AGG. Whether, and under what conditions, the Austrian Equal Treatment Act (GlBG) provides a corresponding exception for church or ideological institutions, and how the duties described relate to church staff representation law and to the internal church legal process, is not covered by this article. For Austrian employers, this article clarifies only the general GlBG rules; whether an ideological requirement is permissible there must be assessed separately.

Main article: Section 22 AGG — Reversal of Burden of Proof — covering statistical indications, facts giving rise to a presumption and rebuttal in detail.

1. The special rule in § 9 AGG

Religious communities, institutions assigned to them and ideological associations may make religion or belief a selection criterion where, having regard to the employer's self-understanding in view of its right of self-determination — or according to the nature of the activity — religion or belief constitutes a justified occupational requirement (§ 9(1) AGG).

§ 9(1) AGG describes this permissibility in three steps:

1. Employer: the employment is provided by a religious community, by an institution assigned to it irrespective of that institution's legal form, or by an association whose purpose is the communal cultivation of a religion or belief.
2. Connecting factor: having regard to the self-understanding of the religious community or association concerned in view of its right of self-determination — or according to the nature of the activity. According to case law, the self-understanding alone does not support the requirement; what matters is whether, by reason of the nature of the activities or the context in which they are carried out, religion or belief constitutes a genuine, legitimate and justified occupational requirement (section 3).
3. Result: on that basis, a particular religion or belief constitutes a justified occupational requirement.

Paragraph 1 opens with the words 'Notwithstanding § 8' and declares the difference of treatment permissible 'also': § 8(1) AGG remains alongside it the general ground of justification for occupational requirements. Both wordings are set out in section 6.

This special rule is the exception, not the starting point. Religion and belief are among the grounds on which discrimination is to be prevented or eliminated under § 1 AGG. § 7(1) AGG prohibits discriminating against employees on any of those grounds; the prohibition also applies where the discriminating person merely assumes the ground to be present. Provisions in agreements that breach this prohibition are void under § 7(2) AGG — so such a clause in an agreement, for instance in the employment contract, does not support an impermissible requirement.

Anyone relying on § 9 AGG is thereby invoking an exception to this basic rule. In a dispute, the rule on the burden of proof in § 22 AGG applies alongside it (section 9).

Austria: the AGG does not apply there; the Equal Treatment Act (GlBG) does. Under § 17 GlBG, religion or belief is a protected ground of discrimination in connection with an employment relationship — in particular on entering into the employment relationship, setting remuneration, career advancement, other working conditions and termination.

2. Is the religious requirement subject to judicial review? (CJEU C-414/16 Egenberger, 2018)

Yes — that is what this decision stands for: the religious requirement is subject to judicial review; the employer's own assessment — that is, the assessment according to its self-understanding and in view of its right of self-determination, to which § 9(1) AGG attaches — is not the last word. The requirement must be objectively justified; not every post with a religious community allows religion to be made a criterion.

The standard of review is strict: objectively justified and proportionate. For operational practice this means that the requirement is justified for each individual post and not in a blanket manner for the employer as a whole. Operational consequence: the justification must withstand external scrutiny — it is not enough for it to appear plausible internally; what it has to be based on for each post is set out in section 4.

3. Loyalty obligations during the employment relationship (CJEU C-68/17 IR, 2018)

A loyalty obligation — for example in the case of remarriage after divorce — can be justified only for activities involving direct religious duties.

The statutory basis of the loyalty requirement itself is set out in § 9(2) AGG — the wording contains no restriction to particular activities: the prohibition of difference of treatment on grounds of religion or belief does not affect the right of the religious communities named in paragraph 1, of the institutions assigned to them irrespective of their legal form, or of the associations whose purpose is the communal cultivation of a religion or belief, to require their employees to act loyally and in good faith in accordance with their respective self-understanding. The circle of employers is therefore the same as in step 1 of section 1; the yardstick for the conduct is the respective self-understanding.

This section therefore concerns a different level from sections 2 and 4: there, the issue is the religion requirement when selecting for a post; here, it is the loyalty requirement imposed by a contractual clause in an existing employment relationship.

German case law follows the same narrow line. On § 9(1) AGG: in so far as the provision attaches solely to the religious community's self-understanding, it is incompatible with Directive 2000/78/EC and must remain unapplied; a difference of treatment is permissible where, having regard to the self-understanding, religion or belief constitutes a genuine, legitimate and justified occupational requirement by reason of the nature of the activities or the context in which they are carried out (BAG, judgment of 25 October 2018 – 8 AZR 501/14). On § 9(2) AGG: an institution assigned to the church may not, in its loyalty requirements, treat employees in managerial positions differently according to their denomination or lack of denomination unless religion is an occupational requirement in that sense; loyalty-obligation clauses are to be construed narrowly accordingly (BAG, judgment of 20 February 2019 – 2 AZR 746/14).

Practice recommendation (not a statutory requirement): differentiate loyalty clauses by activity group instead of carrying them over unchanged from the model employment contract into every contract. The organising feature of the groups is how close the activity is to the religious duties that the clause is meant to support — the end points of that proximity scale are named by the threshold in section 4 (there for the selection requirement; here only as a reference point for the proximity of the activity). Determine for each group whether a clause is included in the contract at all, and record the justification using the set of fields for loyalty clauses in section 6 — the field catalogue before it concerns the selection requirement under § 9(1) AGG and does not support a contractual clause. The legal consequences of a breach of the prohibition of discrimination are governed by § 15 AGG (section 10).

4. The practice threshold

For a pastor, religion is a permissible selection criterion; for a cleaner at the parsonage it is not; for a care worker with a church employer it is contested.

The connecting factors are named by § 9(1) AGG itself (steps 2 and 3 in section 1; wording in section 6). What matters when distinguishing between two posts is how the individual activity is defined — not who the employer is; all three examples fall within the circle of employers in step 1. How strictly this is reviewed is set out in section 2. In practice the threshold first takes effect on the job advertisement: in its section on religion and ethnicity, the audit checklist for job advertisements includes the check point 'tendency-employer clause only where applicable' — the clause belongs in the advertisement where the activity supports it, and otherwise not.

Practice recommendation (not a statutory requirement): where a post remains contested — as in the case mentioned above of care work with a church employer — what decides the matter is not the label of the institution but the justification for the specific post. To that end, record two figures in writing for each task of the post: how close the task is to the institution's religious duties and what share it accounts for in the post's overall activity (field catalogue and completed specimen in section 6). A borderline case is decided on those two figures — not on the job title and not on the identity of the employer. If the justification does not hold, the requirement does not belong in the advertisement. If it does hold, tie the requirement in the text of the advertisement to the task from which it follows, and not to the employer; cross-check: does the clause name the task from which the requirement follows? If not, it does not support the justification under section 6. For assessment of the individual case, legal advice must be obtained.

The remaining check points in the same audit section concern ethnic origin and are to be assessed independently of the tendency question — details in the job advertisement audit.

5. Other tendency employers

Political parties, trade unions, party-affiliated foundations, non-profit associations with an ideological orientation — for them, § 9(1) AGG comes into consideration through the third group of employers in the provision: associations whose purpose is the communal cultivation of a religion or belief (step 1 in section 1).

Practice recommendation (not a statutory requirement): the first question is not how the advertisement is worded but how your own institution is classified. To that end, record three points in writing, each as evidence for precisely that feature, before any requirement relating to religion or belief is imposed:

• the purpose set out in the statutes or founding documents and the place where the ideological orientation is anchored there;
• what shows that orientation in the institution's ongoing work;
• which areas of tasks are meant to support it and what share those account for in the overall activity.

If those three points do not support the feature, § 7(1) AGG remains the yardstick.

If they do support it, the threshold from section 4 applies unchanged: in the staffing plan, separate the tasks for which a requirement relating to belief is to be justified at all — with parties, trade unions, party-affiliated foundations and ideological associations, typically programmatic, publishing and educational-policy activities — from the remaining ones, such as accounting, IT, reception and cleaning; the allocation must be justified in each individual case. For every post in the first group, a separate justification arises under the field catalogue in section 6; for the remaining ones, none is produced, and the requirement then does not belong in their advertisement either.

6. Practical implementation

Document for each post: is religion or belief a justified occupational requirement? Two provisions are decisive in their wording. § 8(1) AGG — general provision on occupational requirements: a difference of treatment on a ground named in § 1 is permissible where, by reason of the nature of the activity to be performed or of the conditions under which it is performed, that ground constitutes a genuine and determining occupational requirement, provided the objective is legitimate and the requirement is proportionate. § 9(1) AGG — special rule for religion and belief at tendency employers: notwithstanding § 8, a difference of treatment on grounds of religion or belief in employment by religious communities, by the institutions assigned to them irrespective of their legal form, or by associations whose purpose is the communal cultivation of a religion or belief is also permissible where a particular religion or belief constitutes a justified occupational requirement, having regard to the self-understanding of the religious community or association concerned in view of its right of self-determination, or according to the nature of the activity.

Practice recommendation (not a statutory requirement): put this justification in writing before the post is advertised — the same document supports the review of the advertisement under § 11 AGG (a post may not be advertised in breach of § 7(1) AGG) and the submissions made in a dispute. Fields that have proven useful:

• job title
• organisational unit
• the tasks from which the tendency relevance is said to arise, with their share of the overall activity
• the justification under § 9(1) AGG, structured according to the three steps from section 1: employer, connecting factor, result
• the role responsible for the determination — the function, not just the individual person
• date of the determination
• review date, if the definition of the post changes, and before every re-advertisement

This is what a completed entry looks like for three posts within the circle of employers in § 9(1) AGG: the two end points from section 4 (examples A and B) and the middle range described there as contested (example C), for which the column shows what is to be entered and which outcomes remain open. The table is a documentation specimen, not a classification for other posts.

The yardstick for the entries in column C is the threshold in section 4.

Practice recommendation (not a statutory requirement): for loyalty clauses during the employment relationship (section 3), this field catalogue does not work — it is tailored to the selection requirement under § 9(1) AGG, not to a contractual clause. Set up a separate, short set of fields for that purpose:

• activity group
• proximity of this group's tasks to the employer's religious duties
• which conduct the clause is intended to cover
• reference to loyal and good-faith conduct in accordance with the employer's respective self-understanding (§ 9(2) AGG, wording in section 3)
• decision: clause yes or no
• the role responsible for this decision — the function, not just the individual person
• date of the determination

This individual-case documentation is one part. The second part consists of the organisational duties that apply to every employer irrespective of the tendency question. § 12(1) to (3) AGG requires the necessary measures to be taken to protect against discrimination — including preventive measures — and requires employees to be informed that discrimination is impermissible. Suitable training of employees is deemed to satisfy this duty. If a breach occurs, the employer must take appropriate measures; the Act names a warning, redeployment, transfer or dismissal.

In addition there is the publication duty under § 12(5) AGG (section 8). For tendency employers, two documentation strands therefore run alongside each other — the individual-case documentation on § 9 AGG using the fields named above (practice recommendation; selection requirement under paragraph 1, loyalty clauses under paragraph 2) and the statutory organisational duties under §§ 11 to 13 AGG.

7. The forms of discrimination under § 3 AGG

§ 3(1) to (4) AGG defines the forms of discrimination — the decisive factors being the grounds under § 1 AGG, which include religion and belief: direct discrimination exists where a person receives less favourable treatment on a ground under § 1 AGG; indirect discrimination where apparently neutral provisions are liable to put persons at a particular disadvantage. Harassment — the violation of dignity through a hostile environment — and sexual harassment are likewise discrimination within the meaning of the Act. A requirement relating to religion attaches directly to a ground under § 1 AGG; if the justification under § 9(1) AGG (sections 4 and 6) does not hold, § 7(1) AGG remains applicable.

Austria: for Part II — and thus for religion and belief — the GlBG uses the same division into direct and indirect discrimination (§ 19 GlBG). Harassment is a separate form of discrimination there; an instruction to discriminate also counts as discrimination there.

8. Right to complain, complaints body and protection against victimisation

Under § 13(1) AGG, employees have the right to complain to the competent bodies of the establishment, the undertaking or the public authority if they consider themselves to have been discriminated against on a ground named in § 1 AGG; the complaint must be examined and the outcome communicated. In addition, the Act expressly requires publication: the Act and the information about the body competent for complaints must be made known within the establishment (§ 12(5) AGG); § 13(1) AGG presupposes such a competent body.

The procedure is flanked by the prohibition of victimisation in § 16(1) AGG: the employer may not discriminate against employees because they assert rights under this chapter or refuse to carry out an instruction that breaches it. The same applies to persons who support employees or give evidence as witnesses.

Outside the establishment, in Germany the Federal Anti-Discrimination Agency (Antidiskriminierungsstelle des Bundes) is available; it is established at the Federal Ministry for Family Affairs, Senior Citizens, Women and Youth (§ 25 AGG). Anyone who considers themselves discriminated against on a ground under § 1 AGG may turn to it; it provides independent support, informs about claims, arranges advice and seeks an amicable settlement (§ 27 AGG). In Austria this role is taken by the Ombud for Equal Treatment (GAW), which is responsible for advising and supporting persons who consider themselves discriminated against within the meaning of the GlBG (§ 3 GBK/GAW Act); the prohibition of victimisation is set out there for Part II in § 27 GlBG.

9. Burden of proof: § 22 AGG

In proceedings, the person discriminated against does not have to provide full proof. § 22 AGG provides: where, in a dispute, one party proves indicative facts from which discrimination on a ground named in § 1 AGG may be presumed, the other party bears the burden of proving that there was no breach of the provisions protecting against discrimination. Religion and belief are grounds under § 1 AGG — the rule applies to them as it does to age, sex or disability. Which indicative facts the courts regard as sufficient is dealt with in the main article on Section 22 AGG; the document a tendency employer can fall back on for that purpose is the post-specific justification under the practice recommendation in section 6.

Under EU law, this allocation is anchored in Art. 10 of Directive 2000/78/EC, the framework for equal treatment in employment and occupation, the purpose of which under Art. 1 expressly includes combating discrimination on grounds of religion or belief.

Austria: for religion and belief, § 26(12) GlBG applies. The standard differs from the German one — the person concerned must establish a prima facie case of discrimination; it is then for the defendant party to prove that, weighing all the circumstances, it is more likely that another motive was decisive for the difference of treatment or that a ground of justification exists.

10. Time limits and claims

In Germany, a claim under § 15(1) or (2) AGG must be asserted in writing within two months; the start of the period, the option to depart from it and the Austrian time limits are set out in the table below. The bases of claim themselves are set out in § 15(1) AGG (compensation for the damage incurred, unless the employer is not responsible for the breach of duty) and § 15(2) AGG (appropriate monetary compensation for non-material damage). Where a person is not hired, the compensation may not exceed three months' salary if the applicant would not have been hired even under a discrimination-free selection.

The following overview contains statutory time limits only.

Practice recommendation (not a statutory requirement): the table describes the side of the person bringing the claim; on the employer's side, what matters is what is recorded when an assertion of a claim is received. Document the date on which the assertion was received, the date on which the rejection of the application had been received, and the role responsible for the response — and draw on the post-specific justification under section 6. That is the document which supports your own submissions in a dispute.

Beyond the employment relationship, § 19(1) and (2) AGG prohibits discrimination on grounds of religion in certain civil-law obligations — relevant for ideologically oriented employers with their own service offering; the details are answered in the FAQ.

11. Germany and Austria compared

The AGG applies only in Germany; in Austria the Equal Treatment Act (GlBG) takes this role, for religion and belief in its Part II. The following comparison concerns exclusively the ground of discrimination of religion/belief in the employment relationship, and within that the general rules of both legal systems.