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La loi slovaque contre la discrimination et sa clause de sauvegarde pour les églises

The discriminatory employment behaviour of churches and religious societies is in certain cases explicitly excluded from the Slovak Anti-Discrimination Act. The law grants churches and religious societies the possibility of unequal treatment in cases where the religion or belief of the employee is a fundamental, legitimate and justified requirement for exercising the profession. In other words, if two equally qualified persons apply for two vacant positions of clergy, the church may refuse to employ the one for whom it finds that they profess a different faith than the church for which they want to work for, or they do not profess a religious faith at all. Similarly, when it comes to the teaching of religion at public schools, the content of which, according to the Slovak law, falls under the responsibility of the relevant church or religious society, it will not be considered as a discriminatory treatment if the church refuses to grant permission to teach such a subject on its behalf to a school employee who professes a different faith.

A frequently discussed question is whether the saving clause in the Slovak anti-discrimination act formulated in this way allows the Catholic Church to refuse to employ a theologically educated woman in the position of a clergywoman. The saving clause allows churches and religious societies to treat people unequally only in terms of their faith and religion, but not in terms of gender. These are, of course, hypothetical considerations, as no one in Slovakia has yet taken a legal action in such or a similar case.

An analogous discussion on the interpretation of the limits of legally tolerated discrimination in the case of churches and religious societies has recently been brought up by the statement of the Bishop General of the Evangelical Church of Augsburg Confession in Slovakia (ECAC) Ivan Eľko which he formulated in a public discussion about the attitudes of churches towards homosexuality. Among other things, he admitted that he is asking the pastors, meaning the employees of the church, direct questions concerning their sexual orientation, and also admitted that job seekers applying for the position of a pastor who gave a positive answer about their homosexual orientation would have a serious problem entering into an employment relationship with the church.

The employment relations in Slovakia can be regulated differently depending on internal regulations of the churches and religious societies recognised by the state. A church or a religious society may opt out from certain regulations of the Labor Code by adopting its own statutes. In case of the Catholic Church, its internal canonical law also regulates the employment of clergy. In case of the Evangelical Church, the employment relations are governed by the Labor Code. The Slovak Labor Code has taken over the provisions of the anti-discrimination law and does not allow churches to treat its employees unequally on the basis of their sexual orientation. Although Treaty 250/2002 Coll., concluded by the ECAC with the Slovak Republic, grants the Church the exclusive right to elect, appoint its members to the ecclesiastical ministry, transfer them, dismiss them and decide on the termination of their ecclesiastical ministry (Article 6, para. 2), the internal regulations of the Church do not state anywhere that sexual orientation of an applicant for employment in the ECAC spiritual service constitutes an obstacle for entering into an employment relationship.

From the point of view of the anti-discrimination law, the above-mentioned statement of the representative of the ECAC therefore appears to be discriminatory in at least two aspects. Firstly, it is not clear if asking direct questions about sexual orientation in a confidential interview conducted by a representative of the church in its position as an employer does not constitute discriminatory practice. Secondly, the fact that an employer presents the determination of sexual orientation as part of the procedure which, in the sense of the Labor Code, precedes the establishment of an employment relationship and that the homosexual orientation declared by the applicant during such a procedure would constitute a serious obstacle to employment.

The autonomy of churches and religious societies is a high and respected value in European legal systems. However, the protection of people against discrimination is of equal value. Maintaining a balance between these two values is a serious challenge, the urgency of which is underlined by the public statements we have outlined in this text.

D 27 avril 2021    AOndrej Prostredník

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