Exceptions

• Author: Matthias Mahlmann
• Pages: 56-70

56

4 EXCEPTIONS

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

2000/78)

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.