Employer's questions regarding religion

CAN A PRIVATE EMPLOYER ASK ABOUT RELIGIOUS BELIEFS AT AN APPLICANT'S INTERVIEW?

Summarized: A private employer may not ask any questions regarding the applicant’s faith during interviews. The applicant is not obliged to answer such questions. Questions pertaining to religion could, however, be allowed on exception when the employer has a justifiable interest.  

Every permissible question that an employer poses at an interview is to be answered truthfully. Permissible questions are those that have something to do with the qualified completion of the expected tasks and those whose truthful answers would be of justifiable interest to the employer.¹ Upon the giving of false answers to permissible questions purposefully, the employer has the right to even sever employment later on according to Section 123 of the German Civil Code.² In some cases, the employer may also be able to sue the employee for damages.³  

It’s more common in practice for an employer to ask unauthorized questions directly or indirectly, subconsciously or consciously. Questions with religious or ideological intonations such as “Are you a Muslim?” “Do you pray?” or “Do you go to the mosque?” don’t normally have anything to do with the position being offered, which makes them impermissible in most cases.⁴ When the job applicant is silent upon questioning or even tells the employer that such a question is inadmissible, the chances of them getting the job are usually slim. It is therefore legally accepted for the applicant to reply untruthfully when faced with such questions without them having to face any legal consequences for it.⁵ 

Questions with a religious reference could be permissible as an exception when the employer has a justifiable interest.⁶ Such a justifiable interest could be displayed by ideological enterprises or religious groups,⁷ such as the church or other institutions connected to it such as kindergartens, hospitals, emergency rescue services and old-age homes.⁸ Questions regarding a circumstance which the employer needs to take it account for an employee’s recruitment are also allowed within the application process.⁹

^{2 See above.}

^{3 Linck in Schaub, Arbeitsrechts- Handbuch, 17. Ed. 2017, section 34, margin 30.} 

^{4 Melms in: Münchner Anwaltshandbuch Arbeitsrecht, 4. Ed. 2017, section 9 margin 71.} 

^{5 Federal Labour Court, case from 22.09.1961, 1 AZR 241/60.}

^{6 Thüsing in: Richardi, Betriebsverfassungsgesetz, 16. Ed. 2018, section 94, margin 17.}

^{7 Armbrüster in: Münchener Kommentar zum BGB, 7. Ed.. 2015, § 123, margin 46.} 

^{8 Kania in: Küttner, Personalbuch 2018, 25. Ed. 2018, Term: Tendenzbetrieb, margin 3.} 

^{9 Bader, Arbeitsrechtlicher Diskriminierungsschutz als Privatrecht, Berlin 2012, page 181.}