Religious discrimination in the workplace: which approach should the CJEU follow?

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

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