The church's right to self-determination does not justify unequal treatment on the basis of religion alone. A specific reference to the advertised job is always required. This has now been decided by the Federal Labour Court (BAG) (Ref.: 8 AZR 194/25 of 21.05.2026). This was preceded by a decision of the Federal Constitutional Court (BVerfG) (Ref.: 2 BvR 934/19, decision of 29/09/2025).

At the end of 2012, an organisation of the Protestant Church in Germany advertised a consultant position. The job advertisement required membership of a Protestant church or a church belonging to the Association of Christian Churches (ACK). A non-denominational applicant, who was not invited to an interview, filed a claim for compensation pursuant to Section 15 (2) AGG for discrimination on the grounds of religion.

The BAG had initially ordered the defendant to pay compensation in 2018. The Second Senate of the BVerfG overturned this judgement and referred the case back. In doing so, the BVerfG had strengthened the church's right to self-determination and clarified that the state courts must apply a more cautious standard of scrutiny when reviewing church recruitment requirements.

The BAG has now dismissed the claim and found that the requirement of church affiliation pursuant to Section 9 (1) Alt. 2 AGG was justified. According to the nature of the job or the circumstances in which it is carried out, church membership must constitute an essential, legitimate and justified professional requirement in view of the ethos of the religious community and must be suitable, necessary and appropriate with regard to the specific job.

The BAG considered this to be the case in this instance: The position expressly included the external representation of Diakonie vis-à-vis politicians, the public and human rights organisations. According to the BAG, anyone who represents a religious community externally must also belong to it. The church's right to self-determination, which was strengthened by the BVerfG decision of 2025, had to be taken into account in the context of a constitutional interpretation of the AGG and led to a different weighting in the weighing process compared to the earlier decision of 2018.

With this decision, an extraordinary legal dispute that has been going through the European legal protection system for more than a decade has now come to an end. „The decision makes it clear that church employers can require applicants to have a religious affiliation if the specific job requires this, for example if it itself has a sufficient religious or representative connection,“ says Rechtsanwalt Dr Johannes Held. The more a position affects the external image or touches on the core area of the right to self-determination, the more likely it will be possible to justify the requirement of church membership.