Raison d’Etat at Work

Until recently, employment law disputes rarely intersected with international political controversies. The Middle East conflict, however, has acquired global resonance—amplified by social media and polarized discourse after the Hamas attack of October 7, 2023—and has now spilled into German workplaces, where employers increasingly scrutinize employees’ statements. Germany’s historical responsibility toward Israel, rooted in the Holocaust, adds a unique layer of complexity, as political statements are viewed through the lens of national identity and foreign policy.

As recent German court rulings demonstrate, the Middle East conflict is increasingly straining workplace relations. A media design apprentice criticizes his employer’s pro-Israel stance on the Middle East conflict on the company intranet. A week after the Hamas attacks, a soccer player from a German first-division club reposts the phrase ‘From the river to the sea, Palestine will be free.’ An anthropologist at a publicly funded research institute posts texts on social media that his employer claims deny Israel’s right to exist. Despite their differences, these cases share a common thread: in each, the employer sought to terminate the employment relationship due to the employee’s political activity related to the Middle East conflict, raising critical questions about the boundaries of free speech in the workplace.

Focusing on legal and methodological questions, this essay defends employees’ freedom of speech without endorsing the positions expressed, and analyses how German labour courts address conflicts between employment contracts, fundamental rights, and broader political sensitivities.

Domestic Courts and World Politics

The foregoing examples illustrate that labour tribunals are increasingly adjudicating cases shaped by international legal considerations. Yet they are not the only judicial forums to encounter such questions; family and criminal courts likewise face proceedings where international law plays a role. These patterns reveal a more fundamental institutional challenge: domestic courts must often resolve disputes that, at their core, involve complex questions of international law and carry significant political implications. Without specialized expertise or well-developed doctrinal guidance, judges risk being influenced—consciously or not—by political considerations.

This tension becomes particularly visible in cases touching upon the Middle East conflict. Here, Germany’s commitment to Israel’s security as an element of its raison d’état may come into play. While the prevailing view in academic discourse holds that ‘Staatsräson’ carries no legal significance, it remains uncertain to what extent judicial reasoning may nevertheless be shaped by this principle, even without explicit acknowledgement. Such an implicit influence complicates efforts to assess employees’ rights to express views on the Middle East conflict within workplaces and public forums, as legal evaluation may become subtly intertwined with political commitments.

Challenges within German Employment Law

At the same time, German employment law in general faces inherent challenges in resolving disputes concerning duties of mutual consideration as provided by Section 241(2) of the German Civil Code (BGB). These cases are often framed as conflicts between competing fundamental rights: employers invoke their freedom of occupation and entrepreneurial autonomy to regulate workplace conduct, while employees assert their rights to freedom of speech or, in some instances, freedom of religion. The outcomes of these balancing acts are unpredictable, undermining legal certainty. A critical yet underappreciated aspect is that the resolution of such cases often hinges on interpreting the employment contract itself before fundamental rights come into play. The employment contract is above all an exchange: work in return for money. It is therefore unreasonable to assume, for example, that employees surrender their religious freedom at the workplace gate, granting employers the right to prohibit religious symbols where these are irrelevant to work performance. Similar principles apply to freedom of speech: An employment contract does not inherently grant employers the authority to restrict employees’ political expressions unless these impair work performance.

Examples of the latter include cases where employee expressions disrupt workplace harmony. Tensions among the workforce over attitudes towards the Middle East conflict do not necessarily make employee expressions at the workplace unlawful. According to the German Federal Labour Court (Bundesarbeitsgericht), ‘merely jeopardising industrial harmony through political or party political activities is not usually sufficient to justify summary dismissal; rather, there must be a specific disruption to the employment relationship in terms of performance, in terms of the solidarity of all employees within the company (industrial harmony), in terms of personal trust or in terms of the company itself’ (Bundesarbeitsgericht, December 9, 1982 – 2 AZR 620/80, translation by the author). However, every termination has a prognostic element inherent in it, which is why the employer should be able to prevent a disruption of workplace harmony by termination.

In contrast, the legal framework shifts significantly for statements made outside the workplace. Employees’ private expressions, even if controversial or extremist, must generally be tolerated by the employer. It is true that expressions of staff members can jeopardise the employer’s reputation with business partners and customers. However, according to the Federal Labour Court, a breach of the duties under Section 241(2) of the BGB depends on whether the behaviour ‘is related to the obligations under the employment contract or the employee’s work and thereby infringes the legitimate interests of the employer or other employees’ (Bundesarbeitsgericht, September 10, 2009 – 2 AZR 257/08, para. 21, translation by the author). Such a relation exists, for example, if an employee’s private social media profile explicitly identifies the employer, but not if only third parties establish the link to the employer.

As evident from the above, employers have limited legal authority to restrict employee statements during employment or terminate employment on such grounds. By contrast, private employers are not obligated to hire individuals with political views they oppose. While employers face numerous anti-discrimination prohibitions, neither European directives nor German law explicitly prohibit discrimination based on political opinion. Although political opinion is mentioned in Article 21 of the EU Charter of Fundamental Rights, this does not directly prohibit discrimination between private individuals.

A Distinct Legal Framework for Mission-Driven Organizations

Unlike typical private employers, whose reputations are rarely affected by employees’ statements, mission-driven organizations must publicly uphold specific ideological or intellectual goals. German employment and industrial law recognise such entities as ‘Tendenzbetrieb,’ or mission-driven establishments, which are subject to special rules. These organizations primarily pursue political, religious, charitable, educational, scientific, or artistic objectives, or focus on expressing opinions, thereby advancing fundamental rights through their activities. Under Section 241(2) of the BGB, the Federal Labour Court imposes additional duties on employees who significantly contribute to these ideological goals, known as ‘Tendenzträger.’ These employees must align their conduct both at the workplace and outside the company with the organization’s core objectives, ensuring they do not undermine its mission.

Case Study: Employee Speech in Academia

In the case of the anthropologist accused by his employer of denying Israel’s right to exist in social media posts, the legal framework for mission-driven organizations was pivotal. On October 7, 2023, the anthropologist posted a poem-like text on Facebook, criticizing Israel’s occupation as escalating from ‘hard’ to ‘barbarous’ in response to Palestinian resistance, accusing Zionists of oppressive tactics and a ‘self-congratulatory transnational consortium of colonialists’ of justifying Israel’s self-defence. Several weeks later, he identified Israel as a ‘Zionist ethno-nationalist project’ and condemned ‘supremacist mourning’ post-Hamas attack. These posts, deemed by the employer to undermine Israel’s legitimacy and right to exist, led to the termination dispute.

The Halle Labour Court rejected extraordinary termination due to late notice but upheld ordinary termination, arguing the anthropologist, as a key contributor to the institute’s goals, had breached his duties of consideration. Whether the anthropologist’s harsh criticism of ethnic nationalism should be deemed anti-Semitic remains open to debate and is not the focus here. Regardless of that classification, the court’s decision warrants scrutiny. The institute, undeniably a mission-driven organization, pursues intellectual objectives, and the anthropologist, as head of a book project on transversal thinking, played a key role in advancing these goals. Yet, the court’s conclusion that the anthropologist must adhere to the institute’s stated ‘principles’ raises concerns. These principles include the institute’s commitment, following the Hamas attacks, to maintain close scientific and collegial ties with Israeli research institutions to offer support where possible. The court ruled that the anthropologist had to reflect the institute’s core stance in his public conduct outside work. Citing criticism in a newspaper report about the anthropologist’s private posts, the court argued that the research institute’s reputation was at risk. However, the special rules for mission-driven employers do not fully shield them from disadvantages that other private employers must accept. Rather, these exceptions apply only to the extent that they relate to the basis for the privilege. A research institute that adopts a pro-Israeli stance expresses a political, rather than scientific, position. This may be mission-driven, too, but a publicly funded academic institution would likely avoid being perceived as a ‘Tendenzbetrieb’ in this context.

The court’s balancing of conflicting fundamental rights merits further criticism. Its deliberations appear to have been influenced by weighing not only the employer’s freedom of enterprise (Article 12 of the Basic Law) but also academic freedom [Article 5(3) of the Basic Law] in favour of the employer. In contrast, the court considered only the employee’s freedom of expression [Article 5(1) of the Basic Law] as supporting his position. The court failed to examine whether the employee could also invoke academic freedom. It seemingly assumed that the anthropologist’s posts do not fall within the scope of academic freedom’s protection. Even if this assumption cannot be conclusively assessed here, the question should at least have been raised. Academic expression today is highly diverse and varies significantly across disciplines. It is therefore misguided to adopt a narrow view—for example, equating science solely with formal markers such as footnotes.

The ruling from Halle is also an example of how ideas about the special relationship between Israel and Germany are increasingly gaining legal significance. According to the judgment, the anthropologist must, ‘as an academic in the public eye, also take into account in private publications that the [institute]’s research is conducted in the knowledge that it affects the Federal Republic of Germany’s relations with foreign states. In particular, the relations between the Federal Republic of Germany and the State of Israel are of paramount importance due to German history.’ (Translation by the author.) It is far from evident that such notions of German raison d’état can be read into the employment contract with a Lebanese-Australian academic. While Germany’s historical responsibility is unquestionable, how this responsibility manifests in private legal relationships between individuals remains an unresolved issue. Employment law may contribute to clarifying some aspects of these disputes, but a broader, ongoing dialogue across disciplines and within the legal field is necessary to fully address the underlying complexities.

Conclusion

Recent German court rulings highlight the escalating tension between employee free speech and employer interests in disputes involving the Middle East conflict, exposing critical challenges within employment law. These cases underscore labour courts’ struggles to address political expressions, particularly when Germany’s commitment to Israel’s security as part of its raison d’état subtly shapes judicial outcomes. German employment law overly prioritizes balancing competing fundamental rights—such as employees’ freedom of expression against employers’ occupational autonomy—while insufficiently focusing on interpreting employment contracts as the primary methodological approach. This imbalance, where contracts are not adequately examined to determine whether private expressions impair work performance, leads to unpredictable rulings and undermines legal certainty. As courts navigate these complexities, further legal and societal discourse is crucial to develop clear guidelines, ensuring employment law respects individual rights without overextending notions of German raison d’état into private legal relationships.