In Katholische Schwangerschaftsberatung v JB the CJEU returned to consider the question of how to balance the right of religious organisations to religious autonomy with the right of their staff  to equality and non-discrimination on grounds of religion, an issue that it had considered before in Egenberger and IR.  The question of the extent to which religious organisations have autonomy over whom to employ, in particular where this limits the equality rights of staff, is deeply contested internationally, with some jurisdictions such as the US prioritising the autonomy of religious organisations, and others such as the CJEU, ECtHR (see Fernández Martínez and Travas cases) and the IACtHR preferring a more balanced approach. Given that both the right to religious freedom and the right to equality have standing as international human rights, the balancing approach of the CJEU, reiterated in Katholische Schwangerschaftsberatung v JB is to be preferred. 

The case involved an employee, JB, who worked for a Catholic pregnancy counselling service in Germany. Her role involved advising women in line with Church teachings with the objective of protecting the life of the unborn child. JB was part of a team of six, four of whom were members of the Catholic church, and two who were not. JB lost her job after ending her membership of the Catholic Church, despite the fact that her personal beliefs still aligned with Catholicism, and she was prepared to continue providing counselling in accordance with Catholic teaching. The reason for leaving the church was, instead, due to a tax dispute with the local diocese, involving the imposition of a levy on persons, like JB, in interfaith marriages with high-earning spouses. JB claimed that her dismissal amounted to direct discrimination on grounds of religion or belief. The employer argued that a requirement to remain a member of the Catholic church was justified as a genuine occupational requirement of the role, which required loyalty to the Catholic church, a loyalty which was undermined by her decision to end her membership of the Church.

The case was referred to the CJEU to determine whether Employment Equality Framework Directive 2000/78 prohibits dismissal from employment in these circumstances. The CJEU ruled that, in cases where the religious ethos employer does not require all staff to belong to the Church, and where the employee has not acted in a manner that is antagonistic to the Church, the dismissal was not lawful.

In reaching this welcome, though perhaps unsurprising, decision, the CJEU reaffirmed its position in the cases of Egenberger and IR and undertook a balancing exercise which recognized and respected the legal obligations in EU law to uphold religious autonomy, both that of the counselling service to employ those who respect their religious ethos, and that of JB, exercised here through her freedom to leave the Church. At the same time, the CJEU was firm that this has to be held in balance with the principle of equality and the need to protect the non-discrimination rights of employees.

In this case, the decision was relatively straightforward. Given that others were employed without being members of the Catholic Church, the requirement imposed on the employee to remain a member of that church could not be a genuine occupational requirement. There was no sufficient link between the occupational activities and the requirement to be a member of the Church. Whilst there was a sufficient link with the requirement to be loyal to organisation’s ethos of support for the promotion of the life of the unborn child, the employee remained loyal to that ethos: there was no evidence that the employee would not fulfil the obligations of loyalty to the employer with regard to her support for its approach to pregnancy counselling. Moreover, the reason for leaving the Church related to a separate financial matter. It did not involve a public distancing from, and thus any disloyalty towards, the ethos and teaching of the Church.

The case, while a helpful confirmation of the need to balance loyalty to the employer against freedom from discrimination, thus leaves open the question of whether, had the employer been more consistent in requiring all staff to comply with a requirement of church membership, the case might have been determined differently. The Court did not challenge the autonomy of the Church to set its ethos, rather its challenge was based on the inconsistency of the Church in its application of the ethos to some and not others.

In Katholische Schwangerschaftsberatung v JB the CJEU thus reiterated its commitment to uphold the right of religious employers to impose genuine, legitimate and justified occupational requirements on staff in order to uphold religious freedom and autonomy; but it also reiterated that the principle of non-discrimination must be interpreted strictly. Although in this case, the balance between these two interests clearly fell in favour of the employee, the case is nonetheless important. It confirms the difference in the CJEU’s approach from that in the US, where religious autonomy is paramount.  The European approach, along with the approach of the IACtHR, instead achieves balance through a commitment to fact sensitive proportionality review. This does not unacceptably erode the religious autonomy of religious organisations: instead, oversight of the exercise of religious autonomy is necessary for the adequate protection of equality rights.