Wearing the veil at work: Achbita and Bougnaoui - Can a duty to reasonable accommodation be derived from the EU concept of indirect discrimination?

Sara Benedi Lahuerta, Lecturer in Employment Law, Southampton Law School

The Islamic headscarf issue has finally reached the Court of Justice of the European Union (CJEU) through two preliminary references, Achbita and Bougnaoui, issued by Belgian and French courts, respectively. While the CJEU has –directly or indirectly– dealt with religious freedom issues before in the context of the internal market (see eg Van Duyn v Home Office) or the right to asylum (see Bundesrepublik Deutschland v Y and Z), this is the first time that the CJEU has ever been asked about religious discrimination under Directive 2000/78 (the 'employment equality' Directive), although the latter prohibits religious discrimination in employment within the EU since 2000. In addition, these are the first two cases where the CJEU is confronted with the issue of whether restricting the use of the Islamic headscarf at work can amount to religious discrimination. In contrast, several national jurisdictions* and the European Court of Human Rights (ECtHR) (see eg Ebrahimian v France) have already dealt with this matter.

This thus is an excellent opportunity for the CJEU to position itself as regards the ECtHR’s case law on religious dress and to clarify how the employment equality Directive should be interpreted in religious discrimination instances. Indeed, both cases have been assigned to the Grand Chamber, which signposts their potential importance, and the hearings are scheduled for today.

Background of the disputes

These two cases have some common features: the applicants are Muslims working for private companies; they both used to wear the hijab (ie the Islamic veil that covers the head and the chest, but not the face) at work; and, in both cases, their employer considered that this was in conflict with the respective organisations’ neutrality policy, so after refusing to remove the hijab at work, the applicants were dismissed. Bougnaoui and Achbita should thus be distinguished from the ECtHR case SAS v France (see a commentary here), which concerned the French ban to wear the burqa and the niqab (ie the Islamic veils that cover the full body, including the face) in public spaces (and not within a private company, as it was the case in Bougnaoui and Achbita).

On the other hand, however, there are also some differences between these two cases. Firstly, Bougnaoui was wearing the headscarf from the outset, that is, from the very first day she was working for the employer (Micropole Univers). In contrast, Achbita only decided to start wearing it during working hours after being in employment for three years with the company ‘G4S Secure Solutions’ (she nevertheless always wore it outside work). Secondly, Bougnaoui worked as an engineer who spent some of her working time at Micropole Univers’ premises, and some other time working at clients’ premises. The company’s position was that she should not wear the hijab when she had to be in contact with clients (either at the company’s own premises or at the clients’ offices), but she was allowed to wear the hijab the rest of the time. Conversely, Achbita, who worked as a receptionist, was not allowed to wear the headscarf at all. Finally, while in Bougnaoui there was an express complaint of a client who was ‘inconvenienced’ by the hijab and requested that she did not wear it the next time, according to the information publicly available, in the Achbita case there was not an explicit client complaint.

The questions asked by the referring courts are also different. In Achbita, the Belgian court asks whether the employer’s neutrality rule amounts to direct discrimination, while in Bougnaoui, the French court asks whether the neutrality requirement can amount to an occupational requirement (art 4(1), employment equality Directive) if it is a client’s demand.  In my view, however, the central issue at stake in both claims is whether an employer’s duty to accommodate religious practices can be derived from the EU concept of indirect discrimination (art 2(2)(b), employment equality Directive).

The questions asked by the national courts

Direct or indirect discrimination?

Neutrality rules are normally classical examples of the type of policies that can amount to indirect discrimination. Typically, they are not introduced because some employees profess a given faith, but rather to preserve the organisation’s image or the principle of secularism. So they usually are neutral on their face and they apply to everyone, but in practice they can put at disadvantage certain groups, eg people who feel compelled to express their religious believes through certain religious practices or dresses. Indeed, in this case, both claimants were arguably put at disadvantage by the neutrality policies, and so would have been anyone trying to wear a religious symbol or dress in their respective workplaces. It thus seems relatively straightforward that these neutrality policies can amount to indirect discrimination.

However, there may be instances where a particular policy or practice can amount to either direct or indirect discrimination depending on the specific factual circumstances surrounding the case. As the CJEU has recently noted, the key element to differentiate between direct and indirect discrimination is that: ‘[i]f it is apparent that a measure which gives rise to a difference in treatment has been introduced for reasons relating to [the protected characteristic], that measure must be classified as ‘direct discrimination’ within the meaning of [EU law]. By contrast, indirect discrimination […] does not require the measure at issue to be based on reasons of that type. […] It is sufficient that, although using neutral criteria not based on the protected characteristic, it has the effect of placing particularly persons possessing that characteristic at a disadvantage’ (CHEZ Razpredelenie Bulgaria AD, paras 95-96).

The information publicly available on the Achbita case suggests that the company’s neutrality policy existed before she started wearing the headscarf at work. However, it seems that after the conflict with the claimant arose, and ‘[f]aced with the persistence of the employee to wear the headscarf during working hours, the company’s board of directors decided to amend work regulations in order to forbid the workers to wear any visible symbol expressing their political, philosophical or religious beliefs’.** This suggests that there might be a causal link between the employer’s decision to ban wearing visible religious symbols and Achbita’s decision to start wearing the hijab at work. While this is a matter of proof to be considered by the national court, if there is enough evidence to suggest that this prohibition was introduced because of the religious conflict that arose between Achbita and the company, it could arguably amount to direct discrimination.

Can a client’s ‘neutrality requirement’ amount to an occupational requirement?

Whether the policies at stake in these two cases amount to direct or indirect discrimination, at the justification stage, the employers could try to rely on article 4(1) of the employment equality Directive to argue that not wearing the headscarf at work is an occupational requirement, in other words, that it is genuinely necessary ‘by reason of the nature’ of the job ‘or the context in which [it is] carried out’, and that requiring this is legitimate and proportionate. However, it seems that this argument was only put forward in Bougnaoui.

The fact that in that case a client requested that in the future the claimant did not wear the hijab resonates with the Firma Feryn case, where a Belgian company director publicly stated that he was not willing to hire Moroccans because he had to comply with its ‘customers requirements’, who did not want domestic alarm systems being installed by ‘immigrants’ (AG Poiares Maduro’ Opinion in Firma Feryn, para 4). In that case, AG Poiares Maduro concluded that not hiring Moroccans for that reason amounted to direct discrimination –which was confirmed by the Court– and he noted that the fact that customers were ‘unfavourably disposed towards employees of a certain ethnic origin’ simply ‘illustrate[d] that “markets will not cure discrimination” and that regulatory intervention is essential’ (paras 18-19 of the opinion).

In Bougnaoui, not wearing a headscarf was not genuinely necessary and determining to successfully perform the substance of the applicant’s job as an engineer. Furthermore, the occupational requirement exception is only applicable to ‘very limited situations’ (recital 23, employment equality Directive) and exceptions to the principle of equal treatment should be interpreted strictly (Prigge v Lufthansa, paras 56, 71). Therefore, the client’s request that Bougnaoui should not wear the headscarf should not be interpreted as an acceptable occupational requirement, as defined in article 4(1) of the employment equality Directive. Although the employer could also try to rely on article 2(5) of the Directive to justify this policy arguing that it was necessary to protect the rights and freedoms of others, the mere fact that the client did not like watching the applicant wearing the headscarf does not seem a legitimate reason to claim that third parties’ ‘rights and freedoms’ were affected.

The key underlying issue: can a duty to accommodate religious practices be derived from the EU concept of indirect discrimination?

Under EU law, the employer has a duty to reasonably accommodate disabled persons (art 5, employment equality Directive), and to some extent pregnant women (Directive 92/85/EEC, art 5(1)). While EU law does not formally recognise this duty for any other ground, some academics argue that it could be derived from the concept of indirect discrimination,*** as it has been the case in Canada (Ontario Human Rights Commission (O’Malley) v Simpsons-Sears [1985] 2 SCR 536). This could be especially suitable for cases where religious practices clash with the protection of a legitimate objective or with the protection of the rights and freedoms of others.

Indeed, while the ECtHR has not explicitly recognised a duty of reasonable accommodation for religious believes, in Thlimmenos it stated that:

The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different. (Thlimmenos v Greece, para 44)

This effectively means that states should accommodate persons who have different needs unless there is an ‘objective and reasonable justification’ not do it. In other words, the ECtHR suggests that the ‘reasonableness’ of accommodation should be analysed as part of the objective justification test which is inherent to indirect discrimination and entails considering whether the failure to treat the claimant differently pursues a legitimate aim and is proportionate.

The ECtHR has been reluctant to apply this principle in religious discrimination cases in the education sector  (see eg Dahlab v Swistzeland; Sahin v Turkey; Dogru v France) and in the public sector (see eg X v UK, Kosteski v Former Yugoslavia Republic of Macedonia, Ebrahimian v France). However, when the ‘accommodation conflict’ arises outside an educational environment and between private parties (ie when there is no need to preserve state’s neutrality), the ECtHR seems to put a lower threshold to find that the rule at stake is not justified, and thus, the religious practice should be accommodated. That was the case in  Eweida v UK , where –like in Bougnaoui and Achbita– the religious accommodation conflict arose within a private company.

Within the EU, the CJEU has outlined the principle of equal treatment as requiring not only that identical situations are treated in the same manner, but also that different situations are treated differently (see eg Joint Cases T-18/89 and 24/89, Tagaras; Case T-10/93, A v Commission), which echoes the ‘reasonable and objective justification’ requirement recognised by the ECtHR in Thlimmenos. Accordingly, the same reasoning could be followed by the CJEU in a case concerning a religious accommodation conflict. In fact, in Prais the CJEU already accepted that the accommodation of religious believes was ‘desirable’, although not required on the facts. Prais was a Jewish applicant to an EU civil service competition. She asked for the date to be changed because it coincided with a Jewish holiday that forbids travelling and writing. When her request was rejected, she argued that it amounted to a violation of the Staff Regulations, which established that candidates should be selected without distinction on grounds of religion. The Court recognised that the appointing authority ‘should […] endeavour to avoid such [religious] dates’, but because she had not informed the Council before fixing the date, the Council was not obliged to accommodate Prais’ believes (paras 16-18).

Against this framework, and given the parallel between the ECtHR and the CJEU’s definitions of equal treatment, it could be expected that in Bougnaoui and Achbita the latter will follow the approach of the ECtHR in Thlimmenos and Eweida to recognise –at least tacitly– that a duty to reasonably accommodate religious differences can be derived from the concept of indirect discrimination. It will be interesting to see whether the Grand Chamber takes this route or it follows a different approach to address this issue.

Photo credit: Mizrahilaw.com

Barnard & Peers: chapter 9, chapter 20

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* See eg the Danish case Føtex, 22/2004 No.U.2005.1265.H (Supreme Court, 21 January 2005); the UK case Azmi v Kirklees MBC [2007] ICR 1154 (EAT); the Belgian case Hema (Tongres Labour Court, 2 January 2013) and the French case Association Baby Lou, decision No S 13/02981 (Court of Appeal of Paris, 27 October 2013).

** E Bribosia, ‘The preservation of the neutral image of a private company may justify the dismissal of employees wearing the headscarf’, European network of legal experts in the non-discrimination field (11 January 2012), citing the Judgment in case G4S, A.R. 2010/AA/453 en 2010/AA/467 (Antwerp Labour Court of Appeal, 23 December 2011).

*** L Waddington, ‘Reasonable Accommodation’ (2011) 36 NTM/NJCM-Bulletin 41, 49; K Alidadi, ‘Reasonable accommodation for religion and belief: adding value to art. 9 ECHR and the EU’s anti-discrimination approach in employment?’ (2012) 37 ELRev 693, 707-710; S Benedi Lahuerta, ‘Taking EU Equality Law to the Next Level: in Search of Coherence’ (2016) European Labour Law Journal (forthcoming).

The French ban on public face-veiling: enlarging the margin of appreciation

Ronan McCrea

Senior Lecturer in Law, University College London; author of Religion and the Public Order of the European Union

The Grand Chamber of the European Court of Human Rights has issued its eagerly-anticipated decision in SAS v France, the challenge to the French law of 2010 banning face-veiling in public spaces.

The applicant, a French national represented by British lawyers, had alleged that the law violated no fewer than 6 articles of the ECHR: Article 3 (inhuman and degrading treatment), Article 8 (privacy), Article 9 (freedom of religion and belief), Article 10 (freedom of expression), Article 11 (freedom of association) and Article 14 (non-discrimination in relation to the rights protected by the Convention).

The claims under Articles 3 and 11 were easily dismissed with the Court noting that the applicant’s treatment fell well short of the severe treatment needed to constitute the “inhuman and degrading treatment” prohibited by Article 3 and that no evidence had been provided to substantiate a claim to breach of her freedom of association.

More narrowly and more controversially, it held, by 15 votes to 2, that there had been no violation of Articles 8, 9, 10 or 14. Despite the large majority, the decision was finely balanced. The Court rejected three of the four justifications offered by the French authorities for the law and accepted the fourth only with some hesitancy and with heavy reliance on the need for the Strasbourg Court to defer to the judgment of democratically-legitimated national authorities on these matters.

The Court treated the challenge under Articles 8, 9 and 10 as raising substantially similar issues; namely whether the restriction of the Applicant’s ability to dress in accordance with her beliefs and desires, could be justified by need to protect public order or the rights and freedoms of others.

The judgment reaffirms the Court’s conceptualisation of freedom of religion and belief as an individual right. Rightly shying away from the theologians’ task of adjudicating on what Islam does or does not require, the Court declared that it was “of no relevance” that most Muslim women do not see the face veil as necessary. The fact that the Applicant herself wished to wear the veil for religious reasons was, for the Court, sufficient to bring her actions within the scope of Article 9.

The French authorities put forward four arguments in defence of the prohibition: public safety (related to the need for individuals to be identifiable), the protection of equality between men and women, the protection of human dignity, and the protection of the minimum requirements of life in society.

Three of these four arguments were rejected by the Court. It found that, while public safety could be invoked to require individuals to reveal their faces for identification checks or in certain contexts, a blanket ban on face-veiling could only be sustainable where there was a general threat to public safety, something the French authorities had failed to show.

In relation to the protection of human dignity the Court held that, though it is an important value, a blanket ban could not be justified. It reached this conclusion on the basis that wearing a face veil “is the expression of a cultural identity which contributes to the pluralism that is inherent in democracy”. It further noted the “variability of the notions of virtuousness and decency that are applied to the uncovering of the human body” and that there was no evidence that those wearing the veil express contempt towards others or undermine the dignity of others (para 120).

The invocation of variability of notions of decency in relation to clothing has echoes of the Court’s decision in Vajnai v Hungary where it found a ban on the display of the red star to violate the Convention partly on the basis that the red star had a variety of meanings. The focus on the subjective intentions of veil wearers is interesting in that decisions on dignity have generally focused on objective notions of dignity rather than the perception of the individual carrying out the allegedly undignified act. For example, the Court of Justice of the European Union upheld a German restriction on games that simulated killing in the Omega Spielhallen case without inquiring into whether players of the game intended to violate respect for human life, and the UN Human Rights Committee rejected the complaint of a dwarf rendered unemployed by a French ban on “dwarf tossing” notwithstanding that the applicant felt his dignity was more compromised by unemployment than being thrown around by larger people as part of a performance. If, as the Court’s ruling suggests, it is the subjective intent of the individual that counts then laws seeking to protect collective ideas of dignity are on a much more shaky foundation than before.

The Court’s approach to the claim that the French law sought to protect equality between men and women was equally dismissive. While it accepted that protecting gender equality was a basis on which Convention rights could be restricted it found that “a State Party cannot invoke gender equality in order to ban a practice that is defended by women (…) unless it were to be understood that individuals could be protected on that basis from the exercise of their own fundamental rights and freedoms” (119). As in relation to human dignity, the Court adopts a notably individualistic position, arguing that if women choose to wear the veil, then the equality of men and women cannot be invoked to restrict such a choice.

This seems a little simplistic. Equality laws often restrict the liberty of individual members of a disadvantaged group to ensure the broader fair treatment of the group as a whole. For example, a woman who does not believe in the principle of equal pay for equal work, would not be permitted to take a job at a lower wage than her male colleagues on that basis. The Court might more defensibly have said that the symbolic harm done by the voluntary wearing of clothing that anonymises women in public does not do sufficient damage to the principle of gender equality to justify the restriction on liberty inherent in prohibition of such clothing. Instead it seems to make a balder claim that if women voluntarily carry out an action it can never be legitimate to use the goal of gender equality to restrict such an action. This seems insufficiently thought-through.

The only argument of the French authorities accepted by the Court was that which asserted that the law in question sought to protect “the minimum requirement of civility that is necessary for social interaction” (141). The Court found that “it indeed falls within the powers of the State to secure conditions whereby individuals can live together in their diversity” it held that “the Court is able to accept that a State may find it essential to give particular weight (…) to the interaction between individuals and may consider this to be adversely affected by the fact that some conceal their faces in public places” (141).

The text of Articles 8, 9 and 10 of the ECHR require that measures to restrict privacy, freedom of religion or belief and freedom of expression by justified by a need to protect “the rights and freedoms of others” (or public order and public safety, grounds already rejected by the majority in this case as insufficient to justify a veil ban).

The two dissenting judges sharply questioned whether ideas of civility and ‘living together’ fell within the concept of “rights and freedoms of others” saying that to characterise these ideas in this way was “far-fetched and vague”.

For its part, the majority, though finding that securing conditions for living together did fall within the concept of “rights and freedoms of others”, exhibited significant hesitancy before finding that the French legislation represented a proportionate attempt to protect such rights and freedoms. It noted that the small number of women wearing the veil meant that a blanket ban “may seem excessive” (145), that the ban may have the effect of isolating women (146), that other international bodies had considered the ban disproportionate (147) and that it was concerned by “certain Islamophobic remarks” that featured in the debate on the legislation (149).

Nevertheless, the majority concluded that the ban was proportionate. In so finding it attributed significance to the fact that that the law focused on face-covering rather than the religious connotation of the veil (151) and imposed only a light penalty (a fine of up to 150 Euro). Most significantly it found that the law could be seen as “seeking to protect a principle of interaction between individuals which, in [the State’s] view is essential for the expression not only of pluralism but also of tolerance and broadmindedness without which there is no democratic society” (153) and that the Court “has a duty to exercise a degree of restraint” in assessing the balance struck by the democratic process of a signatory state.

Given the lack of European consensus on this matter and given that this was a matter on which “opinions in a democratic society may reasonably differ” a wide margin of appreciation was called for and no violation of the Convention had been shown. As the law in question represented a proportionate restriction of Convention rights the Court concluded that any indirect discrimination inherent in the ban was justified and that the discrimination (Article 14) claim therefore also failed.

Where does this judgment leave the relationship between the individual, religion, the state and the law in Europe? Given the highly-controversial nature of the law in question and the broad political support for the legislation in question in France, it is unsurprising that the European Court fled to the familiar tools of the margin of appreciation to avoid making a potentially politically-explosive decision. The political firestorm caused by the initial decision in Lautsi v Italy (which held the presence of a crucifix in the classroom of a state school to violate the Convention and which was over-turned on appeal) highlighted the danger for European institutions in seeking to impose Europe-wide solutions on sensitive matters such as religion in public life.

The argument over whether the protection of the principle of ‘living together’ could be a proper basis for the restriction of a fundamental right highlights an important issue for both EU and ECHR law. The framework of rights as a means to adjudicate on disputes can be very problematic. Rights cover only limited aspects of important issues. The Strasbourg Court sees freedom of religion and belief as largely an individual right of choice in one’s beliefs yet this only covers limited aspects of the religious experience of the believer. The secular state is based on a commitment to avoiding religious contestation for political power and a commitment to transcending our religious differences when we come together as citizens in a democracy to make laws that will bind a religiously-diverse population. This is something that cannot readily be translated into a rights claim.

EU Single Market law has struggled to give adequate weight to collective goals such as trade union rights, environmental or public health goals because of the transformation by the CJEU of economic freedoms into fundamental rights. Just as “mandatory requirements” had to be read into the Treaty by the Court of Justice to allow economic free movement rights to be curtailed so as to protect collective goals, the Strasbourg Court has had to adopt an expansive interpretation of “rights and freedoms of others” to ensure adequate protection of broader commitments to religious coexistence.

The dissenting judges are right that the majority’s reading of this term is strained. However, it is necessary to consider whether any other approach is possible. Whether the approach of the French authorities in this case was or was not proportionate, our life together is about more than the rights that we hold against each other and there are important principles that underpin liberal democratic life that are very imperfectly translated into rights terms.

Given that the Court of Justice in Luxembourg tends to defer to Strasbourg on matters of fundamental rights, the decision to uphold the French law will mean that future challenges under EU law are unlikely to succeed. Such challenges could have alleged disproportionate discrimination on grounds of religion or gender in the employment sphere in violation of Directive 2000/78 (the legislation which bans discrimination in employment on grounds of religion, age, sexual orientation or disability) or a disproportionate restriction of free movement rights of a veil-wearing EU national who wished to live in France. The conclusion that the ban is legitimate and proportionate undermines such potential challenges to a significant degree.

The overall impression left by the judgment is of a Court that was uneasy with elements of the French law but was unwilling to intervene in such a controversial area. Indeed, its reasoning contained a number of reaffirmations of its previous case-law upholding less wide-ranging restrictions of religious symbols in particular contexts such as schools, the civil service and identity checks.

The relationship between law and religion is in a state of flux in many EU states. The UK is currently engaged in intense debate on the role of religion in education and the limits of its multicultural model. Sustainable solutions will require trial and error and give and take from each side. Rights will be part of this discussion but so too will more abstract commitments to pluralism and coexistence and communication and compromise. It is therefore perhaps wise of the Strasbourg Court not to seek to impose a Europe-wide solution in such a complex and changing area at this stage.

Barnard & Peers: chapter 9, chapter 20