When Can Religious Employers Discriminate? The Scope of the Religious Ethos Exemption in EU Law

Abstract

When are religious employers exempt from the prohibition of discrimination, i.e., when can they discriminate against non-adherents? The EU Equality Framework Directive exempts religious employers from the prohibition of religious discrimination, but the scope of the religious ethos exemption is disputed and its interpretation by the EU Court of Justice in Egenberger and IR v JQ has been criticised for being ultra vires and for disrespecting the constitutional identities of the Member States. This article clarifies the religious ethos exemption, by examining the underlying legal and normative issues that determine its scope. The article shows that the scope of the exemption depends not just on the Framework Directive but also on the relationship between EU law and national constitutional law and that between EU law and international law. Thus, the article not only provides clarity regarding the religious ethos exemption, but also uses these judgments as an opportunity to revisit these related constitutional issues, and in particular the role of the Court of Justice and EU legislature in defining the place of national constitutional identity in EU law.

Keywords: Religious discrimination; religious freedom; EU non-discrimination law; national identity; employment