Public Prosecutor v. Basuki Tjahaja Purnama aka “Ahok”
Closed Mixed Outcome
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The Federal Labor Court of Germany decided that a general ban on headscarves in schools discriminated against a Muslim applicant who was therefore found eligible for financial compensation. The claimant, a Muslim information scientist, wore a religious headscarf in a job interview while applying to the state of Berlin for an employment program for recruiting school teachers. During the job interview, the employer pointed her to the Berlin Neutrality Act, which prohibits teachers from wearing a religious headscarf when teaching. The claimant received no notification about her application for employment from the defendant following her interview and hence filed a claim for compensation under the General Act on Equal Treatment. She asserted discrimination on the grounds of her religion. The defendant state alleged that banning headscarves in schools was an essential and decisive occupational requirement for teachers and was thus justifiable. The Court held that the Berlin Neutrality Act does not justify a general ban on headscarves because, contrary to established case law of the Federal Constitutional Court, a ban on headscarves for teachers during service was only permissible if there was a sufficiently concrete danger to school peace and state neutrality. Since the defendant did not prove such a danger, the state’s conduct constituted unjustified discrimination of the claimant.
The claimant was an information scientist and practising Muslim who wore a headscarf for religious reasons. She applied to the state of Berlin for employment as a teacher for the subjects of computer science and mathematics as part of a lateral entry program. The state of Berlin invited her for a job interview during which she wore a headscarf. During the interview, an employee of the Central Application Office addressed the legal standards for religious garb under the Berlin Neutrality Act (Berliner Neutralitätsgesetz).
Section 2 of the Berlin Neutrality Act states that “teachers and other employees with a pedagogical assignment in the public schools […] may not wear visible religious or ideological symbols within the service, which demonstrate an affiliation with a particular religious or ideological community to the observer, and may not wear any conspicuous religious or ideological clothing. This does not apply to the teaching of religious and ideological classes.”
The claimant declared that she would not take off her headscarf in class and subsequently wasn’t appointed for the entry program.
On June 9, 2017, the claimant filed a claim against the state of Berlin for compensation pursuant to the General Act on Equal Treatment (Allgemeines Gleichbehandlungsgesetz, AGG) before the Berlin Labor Court (Arbeitsgericht Berlin). The AGG prohibits discrimination on the grounds of race or ethnic origin, gender, religion or belief, disability, age or sexual orientation (cf. section 1). She asserted that the state discriminated against her because of her religion, contrary to the requirements of the AGG. The Berlin Neutrality Act could not justify this discrimination since the ban on wearing a headscarf within the service violated her right to freedom of religion under art. 4 German Basic Law (Grundgesetz, GG). For this purpose, the claimant referred to the 2015 decision of the Federal Constitutional Court (Bundesverfassungsgericht) on a ban on religious headscarves in school in the state of North Rhine-Westphalia. The defendant argued that the Berlin Neutrality Act was in conformity with European law and a strict religious neutrality necessary for preventive reasons, because of the diversity of nationalities and religions in the city of Berlin. For this reason, it did not require proof of a concrete danger to the peace in the school or the state’s neutrality. It asserted that the duties under the Berlin Neutrality Act were a “permissible difference of treatment on grounds of occupational requirements” within the meaning of section 8 (1) AGG.
Section 8 (1) AGG reads as follows: “(1) A difference of treatment on any of the grounds referred to under Section 1 shall not constitute discrimination where, by reason of the nature of the particular occupational activities or of the context in which they are carried out, such grounds constitute an essential and decisive occupational requirement, provided that the objective is legitimate and the requirement is proportionate.”
On May 24, 2018, the Berlin Labor Court rejected the claimant’s motion. The court adopted the defendant’s arguments and ruled that the denial of the claimant’s appointment was justified under section 8 (1) AGG, because the obligation of teachers not to wear religious clothing constituted an essential and decisive occupational requirement. The court determined that the purpose of the Berlin Neutrality Act was to pursue the constitutional requirement of state neutrality in the context of public service and to protect the peace at school, especially in a diverse city like Berlin. According to the court, the Berlin legislator legitimately weighed the conflicting constitutional interests. Notwithstanding the Federal Constitutional Court’s decision of 2015, the circumstances in that case, pertaining to the state of North Rhine-Westphalia, were different to those in a city like Berlin. Moreover, the court held that the 2015 decision narrows the legislator’s scope for decision-making and referred to the dissenting opinion in the decision.
On November 27, 2018, the State Labor Court Berlin-Brandenburg (Landesarbeitsgericht Berlin-Brandenburg) ordered the state of Berlin to pay a compensation of 5.159,88 Euro to the claimant. According to the court, the defendant discriminated against the claimant for religious reasons by not appointing her as a teacher. In contrast to the Berlin Labor Court, it refused a justification under section 8 (1) AGG, because the Berlin Neutrality Act would conflict with the Federal Constitutional Court’s decision of 2015. Applying the principles of the constitutional court, the ban in section 2 of the Berlin Neutrality Act had to be interpreted restrictively and required a “sufficiently concrete danger to the protected interests”. [para. 55] Because the defendant state did not prove such a danger for the state’s neutrality and peace in school, a justification under the Berlin Neutrality Act was not possible.
The parties appealed to the Federal Labor Court – the claimant sought the payment of a higher compensation and the defendant sought dismissal of the case.
The Eighth Senate of the Federal Labor Court delivered a per curiam decision on August 27, 2020.
The central issue for the Court to determine was whether the principles of the Federal Constitutional Court’s decision of 2015 also applied to the Berlin Neutrality Act and whether as a consequence, section 2 of the Berlin Neutrality Act could justify the discrimination against the claimant pursuant to section 8 (1) AGG.
For this purpose, the Court referred to the case law of the Federal Constitutional Court. There it was stated that a state regulation which prohibits the wearing of a Muslim headscarf by a teacher on duty because of the mere abstract possibility of creating a threat to school peace or state neutrality in a public community school leads to a disproportionate encroachment on the freedom of religion under art. 4 German Basic Law. This applies, “if the religious behavior is reasonably attributable to a religious commandment that is understood to be obligatory” [para. 59]1 According to the constitutional court, the weighing of the conflicting constitutional interests, namely the freedom of religion of the teacher under art. 4 (1) German Basic Law against the negative freedom of religion of the pupils and parents, the educational right of parents and the state’s educational mandate pursuant to arts. 4 (1), 6 (2) and 7 (1) German Basic Law call for a restrictive interpretation of bans on headscarves. Therefore, such bans had to be interpreted in conformity with the constitution to the extent that the wearing of the headscarf could be prohibited only if it created a sufficiently concrete danger to school peace or state neutrality.2 The Court noted that the decision of the BVerfG was binding on all courts pursuant to section 31 (1) Act on the Federal Constitutional Court (Bundesverfassungsgerichtsgesetz, BVerfGG). Accordingly, the Court found that section 2 of the Berlin Neutrality Act prohibited the wearing the Muslim headscarf on duty based on an abstract threat. This required “a constitutional interpretation of § 2 Berlin Neutrality Act to the effect that if the wearing of the headscarf was reasonably based upon a religious commandment understood as obligatory, there must at least be a sufficiently concrete danger to school peace or state neutrality”. [para. 66] Since the claimant reasonably proved that she wore her headscarf for religious reasons and the defendant state could not prove a concrete danger to the peace at school or the state’s neutrality, the prohibition in section 2 Berlin Neutrality Act could not serve as a justification for the ban of headscarves.
The second relevant issue for the Court to determine was whether the defendant state could claim that the ban on headscarves in the Berlin Neutrality Act was in conformity with European law and therefore could be distinguished from the interpretation of the Federal Constitutional Court.
The Court stated that for this purpose, the basic requirement was that the regulation fulfilled the principle of coherence required by the law of the European Union. To that end, a “rule of national law is only capable of ensuring the achievement of the asserted objective if it actually meets the concern to achieve it in a coherent and systematic manner”[para. 76]3 However, “[e]xceptions to the provisions of a law may, in certain cases, affect its coherence, in particular if, because of their scope, they lead to a result contrary to the objective pursued by the law”. [ibid]4 Because the Berlin legislator allowed exceptions to the ban on headscarves prescribed in section 2 Berlin Neutrality Act, eg. for vocational schools (Berufsschulen) or for other types of schools, if “the ideological-religious neutrality of the public schools with regard to pupils is not [..] called into question and the peace of the school is not endangered or disturbed” (cf. section 3), the rules under Berlin Neutrality Act were incoherent as the “Berlin legislator itself calls its regulatory concept into question” [para. 82]. Therefore, the Court held that section 2 Berlin Neutrality Act missed the coherence under European Law. Consequently, it said it need not decide on the section’s compliance with art. 10 (Freedom of thought, conscience and religion) and art. 24 (The rights of the child) of the Charter of Fundamental Rights of the European Union or submit a request for a preliminary ruling by the ECJ.
Thus, the Court held that the discrimination against the claimant was not justifiable under section 8 (1) AGG. As a consequence, the state of Berlin unlawfully discriminated against the claimant for religious reasons in the terms of section 7 (1) AGG and the claimant could demand compensation under the AGG. The Federal Labor Court determined that the appellate court did not err in its assessment and rejected the parties’ appeals.
cf. BVerfG, 1 BvR 471/10 (01/27/2015), Headnote 2 ↩
cf. BVerfG, 1 BvR 471/10 (01/27/2015), para. 101, 115 ↩
Referring to ECJ, C-670/18 [Comune di Gesturi] (04/02/2020), para. 50; C-209/18 [Kommission/Österreich] (07/29/2019), para. 94; C-159/10 and C-160/10 [Fuchs und Köhler] (07/21/2011), para. 85; C-169/07 [Hartlauer] (03/10/2009), para. 55 ↩
Referring to ECJ, C-190/16 [Fries] (07/05/2017), para. 48; C-159/10 and C-160/10 [Fuchs und Köhler] (07/21/2011), para. 86 ↩
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Federal Labor Court’s decision is in line with the established case law of the Federal Constitutional Court on the constitutional requirements for teachers intending to wear a headscarf in school. Accordingly, a ban on headscarves is only permissible in states’ legislation on public service, if it makes the ban conditional on whether the headscarf poses a sufficiently concrete threat to state neutrality or peace in school. However, it is questionable whether the Court should have discontinued the proceedings and referred the case to the Federal Constitutional Court to decide whether section 2 of the Berlin Neutrality Act is constitutional, since the section obviously contains a general ban on headscarves and a constitutional interpretation is hardly compatible with the section’s wording.
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