Ronan McCrea*
* Senior Lecturer at the Faculty of Laws at UCL and the author of Religion
and the Public Order of the European Union (OUP 2010) and Religion et l’Ordre
juridique de l’Union Europeenne (Bruylant 2013).
After many years in which religious issues barely figured in
Luxembourg case law we have had in recent weeks two opinions from Advocates
General of the Court of Justice of the European Union on the question of
religious expression at work.
Interestingly, AG Kokott (in her opinion in Achbita)
and AG Sharpston (in her opinion in Bougnaoui)
have come to what appears to be conflicting conclusions on the compatibility of
rules restricting the wearing of religious symbols at work (in both cases Islamic
headscarves) with the prohibition of direct and indirect discrimination in
employment in Directive
2000/78 – the the framework equality directive, which bans discrimination
in the workplace on grounds of age, religion, sexual orientation and disability.
(On the background to the two cases, see also the earlier analysis
of Sara Benedi Laheurta).
Both Advocates General concluded that, where a ban on religious
symbols at work is found to be indirectly discriminatory, a balancing exercise
must be carried out. However, they were in disagreement as to whether such a
ban could be found to constitute direct discrimination.
The reasoning through which they came to these conflicting
conclusions highlights the key dilemma that makes cases relating to religion in
the workplace so difficult.
The key difference between the two Advocates General lies in how
they characterize religion. In her opinion AG Kokott, characterized religion as
a matter of belief and ideology thereby distinguishing it from other protected
characteristics such as gender or race. She noted that the ban in question
covered all religious and political signs and that:
“That requirement of neutrality affects a religious employee in
exactly the same way that it affects a confirmed atheist who expresses his
anti-religious stance in a clearly visible manner by the way he dresses, or a
politically active employee who professes his allegiance to his preferred
political party or particular policies through the clothes that he wears (such
as symbols, pins or slogans on his shirt, T-shirt or headwear).” (para 52)
Thus a distinction could be made between:
“immutable physical features or personal characteristics — such
as gender, (26) age or sexual orientation — rather than with modes of
conduct based on a subjective decision or conviction, such as the wearing or
not of a head covering at issue here.” (para 45)
AG Sharpston on the other hand, found that direct discrimination had
taken place stating that an employee “who had not chosen to manifest his or her
religious belief by wearing particular apparel would not have been dismissed. Ms
Bougnaoui’s dismissal therefore amounted to direct discrimination.” (para 88)
She characterized religion as a form of identity, akin to race or
gender, stating that:
“to someone who is an observant member of a faith, religious
identity is an integral part of that person’s very being. The requirements of
one’s faith – its discipline and the rules that it lays down for conducting
one’s life – are not elements that are to be applied when outside work (say, in
the evenings and during weekends for those who are in an office job) but that
can politely be discarded during working hours. Of course, depending on the
particular rules of the religion in question and the particular individual’s
level of observance, this or that element may be non-compulsory for that
individual and therefore negotiable. But it would be entirely wrong to suppose
that, whereas one’s sex and skin colour accompany one everywhere, somehow one’s
religion does not.” (para 118)
As with many debates in relation to law and religion, one has the
slight impression that two Advocates General are talking at cross-purposes. The
problems that arise in regulating religious expression at work is that religion
is both a set of ideological beliefs and a form of identity.
This makes things particularly difficult. If one views religion as a
set of beliefs, this often calls out for treatment which is entirely contrary
to the treatment that would be appropriate if religion were regarded as a form
of belief.
If one views religion as immutable identity then refusing to allow
someone to wear a headscarf or crucifix when dealing with the public is akin to
refusing to allow a worker with brown skin from serving customers. On the other
hand, if one views religion as a form of ideology and belief, then refusing to
allow a worker wearing a religious symbol from serving customers is no less
justifiable than refusing permission to a worker to wear a Labour Party/Les
Republicains/British National Party/Jobbik/ badge while at work.
Often, there simply is no way to treat religion that does justice to
its belief and identity elements at the same time.
The key legal issue is whether the decision of an employer to decide
to treat religion as a form of belief rather than identity was correct (in
Strasbourg cases the issue will be whether the choice of the state to
characterize religion in a particular way was reasonable). (See R McCrea, "Secularism
before the Strasbourg Court: Abstract Constitutional Principles as a Basis for
Limiting Rights" 79 (4) Modern Law Review 691-705.)
Therefore, AG Sharpston’s argument that religion is a form of
identity akin to race is neither here nor there. It is clear that religion is both identity and
belief. What is needed are criteria to
work out when it is right to treat religion as belief and when it is right to
treat it as identity.
The two Advocates General have provided eloquent arguments in favour
of seeing religion in the workplace as a form of identity and form of belief
respectively. Both approaches are appropriate at times. In relation to
blasphemy laws, it is probably best to see religion as a form of ideology. In
relation tot the right to receive services in a shop, it is probably best to
see it as a form of identity. The
situation of employees is more complicated. Hopefully the Court of Justice’s
coming rulings will provide criteria that will be helpful in establishing why
either approach is to be favoured over the other in the context of employees at
work. Given the controversial nature of this issue, it may well be tempted to
follow the approach of its Strasbourg counterpart and decide that it is
reasonable for Member States to choose either approach.
Barnard & Peers: chapter 20
Photo credit: Mizrahilaw.com
According to me discrimination of any kind is wrong. It is unequal treatment of group of individuals or individual based on their beliefs. This is bad and it's effects could be long lasting. Religious discrimination can be avoided when all the workers are properly educated about the law.
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