Fadia v. Diakonisches Werk Hamburg

Discrimination in Employment

Yesim Fadia applied for a job with a Christian charity providing advice on migrant labor and integration. She was invited for an interview and was asked if she would become a Christian. She declined to do so, and her application was rejected. (Keywords: Discrimination - ECJ Referral - Employment)

Facts

In 2006 Fadia, a German citizen of Turkish-origin, applied for a job as migrant labor and integration counselor with a large Christian organization Diakonisches Werk Hamburg (DWK). She was invited for an interview and was asked at the interview if she was or would become a Christian, since Christianity was one of the job requirements. Fadia is not religious and said that she would not convert to Christianity. She was subsequently barred from further participation in the job selection process.

Fadia made a claim for discrimination against DKW with the Hamburg Labor Court. The court found that religious affiliation is not an occupational requirement for a job as a counselor for migrants and that DWK's refusal to hire her constituted unlawful direct religious discrimination. It also found, contrary to Fadia's allegation, that the differential treatment she had received did not constitute indirect discrimination on the grounds of ethnicity.

DKW appealed the decision, arguing—for the first time—that even if Fadia were Christian or willing to convert she would not have been given the job because she supposedly lacked the necessary qualifications. The Hamburg Labor Court of Appeal accepted this new argument and rejected her claim without considering the question of discrimination. Fadia lodged a request for leave to appeal to the German Supreme Labor Court. The court granted the appeal and the case is currently pending.

Open Society Justice Initiative Involvement

The Open Society Justice Initiative submitted an expert opinion to the domestic courts stating that DKW's practice of refusing to employ anyone who is not a Christian amounts to direct discrimination on grounds of religion in breach of the EU Employment Framework Directive, and indirect discrimination on grounds of ethnic origin, in breach of the EU Racial Equality Directive.

Arguments

Direct Discrimination. Further consideration of Fadia's job application was refused on religious grounds, on the basis that religious organizations have the right to employ solely staff of their own religion, no matter what the position entails. The Justice Initiative argued that to be consistent with the EU Employment Framework Directive, religion must constitute a genuine occupational requirement for the job at issue. The treatment was direct discrimination on the basis of religion, in violation of Article 14 ECHR (prohibition of discrimination).

Indirect Discrimination. Discrimination on grounds of ethnicity violates the Racial Equality Directive. The Justice Initiative argued that the requirement of DKW that that the position of migrant labor and integration counselor must be restricted to Christians adversely, unnecessarily, and disproportionately affects the part of the population in Germany to which she belongs, that of Turkish ethnic origin, of which a large majority is non-Christian. This amounts to indirect discrimination on grounds of ethnicity, in breach of the Racial Equality Directive and Article 14 ECHR.