AuthorMatthias Mahlmann
4.1 Genuine and determining occupational requirements ( Article 4)
In Germany, national legislation provides for an exception fo r genuine and determining
occupational requirements.
Section 8(1) AGG provides that unequal treatment that is bas ed on a characteristic shall
not constitute discrimination where, by reason of the nature of the particular occupational
activities concerned or of the context in which they are carried out, such a characteristic
constitutes a genuine and determining occupational requirement, provided that the
objective is legitimate, and the requirement is proportionate, following closely the wording
of the directives.301
4.2 Employers with an ethos based on religion or belief ( Article 4(2) Directive
In Germany, national law provides for an exception for employers with an ethos based on
religion or belief.
General framework
In German law, an elaborate system of justifications exists for religiou s communities – an
301 The headscarf issue is at its core not conceptualised by the Federal Constitutional Court as a matter relating
to unequal treatment of religions, but instead as relating to possible limits on the freedom of religion, see
Federal Constitutional Court, 2 BvR 1436/02, 24 September 2003,
ECLI:DE:BVerfG:2003:rs20030924.2bvr143602, para. 32 et passim. Even the yardstick for the guarantee of
equality of Article 33(3) GG is the compatibility of a regulation with freedom of religion, Federal
Constitutional Court, 2 BvR 1436/02, 24 September 2003, ECLI:DE:BVerfG:2003:rs20030924.2bvr143602,
para. 39. However, the Court emphasises that any prohibition of religious symbols must respect the strictly
interpreted equality of religions, Federal Constitutional Court, 2 BvR 1436/02, 24 September 2003,
ECLI:DE:BVerfG:2003:rs20030924.2bvr143602, para. 43, 71. The Federal Administrative Court confirmed
this principle of equal treatment in its second headscarf decision, Federal Administrative Court, 2 C 45.03,
24 June 2004, ECLI:DE:BVerwG:2004:240604U2C45.03.0, para. 35. On the general legal framework cf.
Kunig, P. and Mager, U. (2006), in: Mahlmann, M. and Rottleuthner, H. (eds.), Ein neuer Kampf der
Religionen?, Berlin, Duncker & Humblot Verlag, p. 161ff; p. 185ff. The neutrality of the state as a
fundamental principle is also reinforced by the Hesse Civil Service Act (Hessisches Beamtengesetz) (HBG),
27 May 2013, Section 45 (entry into force on 1 March 2014) prohibits the act of wearing symbols that
violate the neutrality of the state. (In the earlier version of the Hesse Civil Service Act (11 January 1989),
the neutrality of the state was discussed in Section 68.) In this context, the Hesse Land Government
prohibited the wearing of the burqa in the public services. The case arose when a public employee
announced they would return to work wearing a burqa after a period of leave. The decision was considered
unsurprising given the established legal framework in Hesse. There is a broad consensus that the burqa
does not constitute suitable dress in the public services, not least because of functional necessities, e.g. in
the context of contact with those seeking the public services provided.
The Federal German Constitutional Court ruled that a general ban on such a religious symbol like the
headscarf was not reconcilable with the fundamental right to freedom of religion, Article 4, and the equality
guarantee of the Basic Law, Article 3. See Federal Constitutional Court, 1 BvR 471/10, 27 January 2015,
ECLI:DE:BVerfG:2015:rs20150127.1bvr047110. Cf. Mahlmann, M. (2015), ‘Religious Symbolism and the
Resilience of Liberal Constitutionalism: On the Federal German Constitutional Court’s Second Headscarf
Decision’, 16 German Law Journal, p. 887ff. The Federal German Constitutional Court confirmed this
jurisprudence in a decision on the permissibility of wearing an Islamic headscarf by a kindergarten teacher
employed by a public authority, cf. Federal Constitutional Court, 1 BvR 354/11, 18 October 2016,
ECLI:DE:BVerfG:2016:rk20161018.1bvr035411. A complaint by a schoolgirl requested dispensation from
swimming lessons in a public school because of prescriptions stemming from her Muslim faith against
showing her body’s form to men. Although the school allows for the use of burkinis, this option was not
regarded as sufficient by the complainant. The complaint was struck down by the Federal Constitutional
Court, 1 BvR 3237/13, 8 November 2016, ECLI: DE:BVerfG:2016:rk20161108.1bvr323713. The Court
argued that the complainant did not substantiate the claim that the use of the burkini was not sufficient to
abide by religious rules in this respect. A lower court held that the prohibition on wearing a headscarf for a
legal trainee in the public justice system is not legal in light of freedom of religion, Augsburg Administrative
Court (Verwaltungsgericht) (VG), Augsburg/Au 2 K 15.457, 30 June 2016. A higher court did not follow this
reasoning, see Bavarian High Administrative Court (Bayerischer Verwaltungsgerichtshof) (BayVGH), 7 March
2018, 3 BV 16.2040. Cf. Constitutional Court of Bavaria (Bayerischer Verfassungsgerichtshof) (BayVerfGH),
Vf. 3-VII-18, 14 March 2019.

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