Selected case law | www.non-discrimination.net

Germany: absence of discrimination by ethos organisation

Federal Labour Court (Bundesarbeitsgericht) 8 AZR 466/09 of 19 August 2010

At last instance, the Federal Labour Court confirmed that there was no discrimination in a case involving a Muslim woman who applied for a position at the Diakonie, a charitable organisation of the Protestant church in Germany. The announcement for a vacant position required, among others, a university degree and membership to the Christian church as preconditions for employment. The applicant was told on the phone by an employee of Diakonie that her application was “very interesting”. She however refused to join a Christian church and did not obtain the job. The Court justified the absence of discrimination on the ground that the applicant was not placed in a comparable situation with the other applicants because she had not university degree, hence could anyway not qualify for the position. The oral statement of the employee was considered as irrelevant as the person was not the one responsible to take any final decision about employment.

France: State obligation to provide special needs assistance to disabled children

Supreme Court (Conseil d’Etat), n° 345434 et 345442 of 20 April 2011

The Supreme Court (‘Conseil d’Etat’) established that, by virtue of the general duty enshrined in Article L112-1 of the Code of Education, the State is under the obligation to organise state education and to take and allocate all means and measures necessary to insure the effectiveness of the right to education to disabled children. In this context, when the Departmental Commission for the Rights and Autonomy of Disabled Persons (the local authority competent for support to disabled children) concludes that special needs assistance must be provided outside school hours, the Ministry of Education must carry the financial costs for the special needs assistant.

Sweden: a general ban on niqabs is unlawful

Equality ombudsman case 2009/103 of 30 November 2010

The Equality Ombudsman established that the general prohibition to wear the niqab at school amounts to indirect discrimination on grounds of ethnic origin or religion, unless it is objectively justified by, for instance, safety regulations for chemical experiments which require specific clothing. The case arose when a 24 year old ethnic Swede who had converted to Islam was not allowed to follow a training program to obtain a diploma as pre-school teachers (barnskötare) for she was wearing a niqab. The school alleged that the niqab prevented the teacher from seeing the student’s face hence rendered it default to teach. In the present case, the Ombudsman found that there were less intrusive measures to solve the pedagogical issue at stake. In fact, the student and the school later agreed that she could sit in the front row of the classroom without her niqab so that male students behind her could not see her face.

Netherlands: age discrimination against a stewardess

District Court of Amsterdam of 21 February 2011 and Equal Treatment Commission of 22 March 2011

Both the District Court of Amsterdam and the Equal Treatment Commission (ETC) found direct discrimination on the ground of age in a claim brought against KLM. An air stewardess, born in 1950, worked for KLM since 1993 under a permanent employment contract. According to the applicable collective agreement, KLM may terminate a permanent employment contract with air stewards/stewardesses on the date when they reach the age of 60. Until the age of 65, the employee may however ask for a contract extension for which refusal may only intervene in case of ‘special circumstances’, such as incapacity to perform the work or defects in the employee performance. In the present case, it was established that no regular performance evaluation of the plaintiff had taken place over the last years. However, several counter performance previously led to formal warnings. After the woman refused the termination of her employment contract at the age of 60, she was offered a temporary contract for one year with no intention from KLM to renew it further.

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