AGG and Tendency Employers: Section 9 + Religion + Church

1. Section 9 AGG Special Rule

Religious communities and tendency employers (religious or ideological organizations) may consider religion as a selection criterion when religious work directly requires it.

2. CJEU C-414/16 Egenberger (2018)

The religious requirement must be objectively justified. Not every position within a religious organization warrants religion as a selection criterion.

3. CJEU C-68/17 IR (2018)

Loyalty duties (e.g., remarriage of a divorced employee) may be enforced only for roles with direct religious responsibilities.

4. Practical Threshold

Pastor: yes, religion criterion permissible. Cleaner in the parish office: no. Caritas care worker: contested and increasingly restricted under post-2018 case law.

5. Other Tendency Employers

Political parties, trade unions, ideologically aligned non-profit associations — Section 9 AGG applies analogously when ideological alignment is genuinely required.

6. Practical Implementation

For each position, document the answer to the question: is religion or ideology an "essential, lawful, and justified occupational requirement"? File this rationale before publishing the job posting.

Summary

Federal Labor Court (BAG) case law (e.g., 8 AZR 501/14) reads Section 9 AGG narrowly. Tendency employers should document the role-by-role justification before recruitment, sign off the rationale at HR-leadership level, and revisit the assessment annually.

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