Faith at work: the CJEU’s headscarf rulings

Ronan McCrea*

* Senior Lecturer, UCL Faculty of Laws and author of Religion and the Public Order of the Euorpean Union (OUP 2010) and Religion et l’ordre juridique de l’Union européenne (Bruylant 2013).

Almost seventeen years on from the adoption of the Framework Directive on discrimination in employment, the Court of Justice has issued its first major decisions in relation to discrimination in employment on grounds of religion. In doing so the Court entered into territory that is extremely fraught in political terms and is therefore highly dangerous for an international court such as the CJEU.

The degree to which multi-faith societies can require individuals to refrain from expressing possibly controversial religious identities or beliefs in shared spaces such as the workplace has never been an easy question. But it has become significantly more difficult in recent years since the question of religion’s role in society has become bound up with highly combustible political issues such as migration, changing norms in relation to gender and sexuality, national identity and even national security.

It must therefore have been with considerable trepidation that the Court of Justice proceeded to give its ruling on two cases that involved challenges by two women who lost their jobs for refusing to remove the Islamic headscarves while at work.

The facts of the two cases were subtly, but importantly, different. In Achbita (Case C-157/15), the Claimant began working as a receptionist at G4S in February 2003 and complied with what was, at the time, an unwritten rule within G4S that workers could not wear visible signs of their political, philosophical or religious beliefs at work. In April 2006 Ms. Achbita informed her employers that she intended to wear an Islamic headscarf at work and was told that she could not do so because this violated G4S’s rule requiring philosophical and religous neutrality in their employees attire. In May 2006 G4S adopted a change to workplace rules making the ban on visible signs of political, philosophical or religous belief a written rule and in June 2006 Ms. Achbita was fired for her insistence on wearing the headscarf at work.

In Bougnaoui (Case C-188/15), the Claimant was informed by a representative of Micropole at an October 2007 student recruitment fair that wearing an Islamic headscarf may pose problems when she was in contact with customers. She began to work at Micropole in February 2008 initially wearing a bandana and then a headscarf. In May 2009, a customer of Micropole’s with whom Ms. Bouganoui had worked, informed her employers that Ms. Bouganoui’s wearing of the headscarf had upset some of their employees and requested that there be “no veil next time”. Ms. Bouganoui refused her employers request to confirm that she would agree not to wear the headscarf on future occasions and was fired in June 2009.

The Belgian and French Courts of Cassation both referred questions relating to the prohibition on discrimination in employment on grounds of religion or belief to the Court of Justice which, given their importance, decided to attribute both cases to the Grand Chamber.

In relation to Achbita the Belgian court asked  whether a ban on a female Muslim employee wearing the headscarf at work should be regarded as direct discrimination when the employer in question bans all employees from wearing any outward sign of political, philosophical or religious beliefs at work. This is potentially important as under the Directive, a directly discriminatory rule can only be justified by a “genuine and determining occupational requirement”. Indirectly discriminatory rules, on the other hand, can be accepted if it is shown that they serve a legitimate aim and are pursued by proportionate and necessary means.

In Bouganoui, the French court asked the Court of Justice whether the wish of an customer not to have services supplied by an employee in an Islamic headscarf could be seen as a genuine and determining occupational requirement under the Directive (seemingly assuming that the restriction in question was directly discriminatory).

Therefore, both claims focused on the issue of direct discrimination. However, in addition to ruling on the issue of direct discrimination, the Court of Justice decided to give significant guidance in relation to the question of justification of bans on religious symbols as indirectIy discriminatory measures.

In both cases, the Court noted that the Directive does not define religion but does refer to the rights contained in the European Convention of Human Rights which include the right to freedom of thought, conscience and religion in Article 9. It also notes the reference to the common constitutional traditions of the Member States which it notes were reaffirmed in the EU Charter of Fundamental Rights which includes a similar right in Article 10. Both of these rights include, the Court found, the right to manifest religious faith in public.

General Bans on Symbols of Opinion and Indirect Discrimination

However, in relation to Ms. Achbita, the Court found that the rule preventing her from wearing her headscarf at work did not amount to direct discrimination as it referred to visible signs of political, philosophical or religious beliefs and thus “covers any manifestation of such beliefs without distinction”. The Court therefore concluded that the rule “must (…) be regarded as treating all workers of the undertaking in the same way, by requiring them, in a general and undifferentiated way, inter alia, to dress neutrally, which precludes the wearing of such signs.”

Having answered the referring Court’s question as to whether the rule in question constituted direct discrimination in the negative, the Court decided to provide additional guidance as to how the national court, which has the authority to decide factual matters, should approach the issue of indirect discrimination. It did so on the basis that it was “not inconceivable”that the referring court might conclude that the rule in question was indirectly discriminatory in that it was “an apparently neutral obligation it encompasses results, in fact, in persons adhering to a particular religion or belief being put at a particular disadvantage” .

The guidance given provides significant illumination as to the approach of the Court to the reconciliation of religious freedom with rules that seek to constrain religious expression in particular contexts in multi-faith societies.

The Court, in common with the European Court of Human Rights in Eweida concluded that in principle, the desire, on the part of an employer to project an image of neutrality “must be considered legitimate”. It bolstered this conclusion with reference to the freedom to conduct a business under Article 16 of the Charter of Fundamental Rights of the EU which it feels weighs in favour of the employers’ rights in this regard “notably” when the rule covers only workers “who are required to come  into contact with the employer’s customers”.

However, the Court stressed that a rule restricting religious symbols or attire can only be seen to be appropriate when it is part of a neutrality policy that “is genuinely pursued in a consistent and systematic manner”. Whether this was the case in relation to Ms. Achbita, was, the CJEU ruled for the national court to decide on the facts.

Despite its emphasis on the role of the national court in applying the Court of Justice’s guidance to the case, the judgment gave a notably strong steer to the national judges concluding that if it were the case that the prohibition covered “only G4S workers who interact with customers (…) the prohibition must be considered strictly necessary for the purpose of achieving the aim pursued” though it did note that the national court must assess wehther it would have been possible to find Ms. Achbita a non-customer-facing role.

The judgment in respect of Ms. Bouganoui took as similar approach. The Court stated that a generally applicable ban on all visible symbols of religious, philosophical or political belief would be indirectly discriminatory and referred explicitly to the guidance given in Achbita for the assessment of the legitimacy, proportionality and necessity of such a ban.

The Court said it was for the national court to decide if Ms. Bouganoui’s dismissal was based on non-compliance with such a general ban. If the decision to dismiss was not based on a general ban but was specific to the headscarf, then it would be necessary to answer the question posed by the national court, namely, whether compliance with a request from a client that the employee refrain from wearing an Islamic headscarf at work could be seen as a “genuine and determining occupational requirement” that could justify a directly discriminatory policy.

On this matter, the Court gave a clear answer. It noted that only in very limited circumstances can characteristic related to religion constitute a genuine and determining occupational requirement. Compliance with a client request such as that made in this case did not meet the Directive’s requirement that a discriminatory rule be justified “by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out”.

Significance of Client Preferences

There are a number of interesting features of the Court’s reasoning in these cases. There may appear to be something of a tension between the two rulings in relation to the role of customer preferences as a basis for the restriction of religious expression on the part of employees. On the one hand, in Achbita, the Court appears to say that the need of the employer to present a neutral image to clients makes it more justifiable to impose a neutrality requirement on employees with customer-facing roles. On the other hand, in Bouganoui, the Court found that compliance with a client’s request for “no veil next time” could not be seen as a “genuine and determining occupational requirement”.

However, to see a conflict here is to misunderstand the Court’s reasoning. In its discussion of the significance of customer-facing roles in Achbita, the Court was focusing on justification of an indirectly discriminatory general ban on all religious, political and philosophical symbols and assessing whether such a general ban would meet the conditions of proportionality, legitimacy and necessity required by the Directive in order to justify such indirectly discriminatory measures.

In contrast, in Bouganoui, the Court was assessing justification of a directly discriminatory criterion, namely the client’s request for “no veil next time”. In other words, the fact that the client in Bouganoui made a request that appeared to target the symbols of a particular faith rather than seeking a general ban on all religious, philosophical and political symbols, made compliance with this request a matter of direct not indirect discrimination. As the test for justification of directly discriminatory measures (“genuine and determining occuptational requirement”) is so much more demanding than that for indirectly discriminatory measures, the reasons for the apparent contrast in outcomes in the two cases becomes clear. Customer preferences may be sufficient to justify an indirectly discriminatory measure but cannot justify a directly discriminatory one.

The focus on the question of whether an employee has a customer-facing role in Achbita is also raises the question of the permissibility of dress-code restrictions for those without customer-facing duties. The Court was clear that interaction with customers was a factor that increased the scope for an employer to require an employee to obey a general and systematic ban on symbols of religious, political or philosophical belief. It is unclear whether this means that it is impermissible to impose such constraints on employees without customer facing roles. Given the controversial nature of many religious and other beliefs, it is conceivable that employers will aim to preserve workplace harmony between employees by imposing bans on symbols of belief at work. Indeed, in the well-known case of Ladele, the objection to accommodating a registrar who refused to carry out same sex civil partnerships came not from any clients but from her fellow employees.

Definition of Religion for Purposes of Discrimination

The fact that the Court relied to a significant degree on the definition of religion in the Article 9 jurisprudence of the European Court of Human Rights did not pose problems in this case. However, there is a certain tension between the right to freedom of religion and belief and the idea of indirect discrimination on grounds of religion. The right to freedom of religion or belief has (rightly) been regarded by the courts as primarily an individual right that allows individuals to choose their beliefs and which does not distinguish between widely shared established beliefs and idiosyncratic or heterodox beliefs and does not favour religious over non-religious forms of belief.

Indirect discrimination on the other hand, has generally involved notions of collective disadvantage and the granting of extra rights to individuals who show they are part of a group facing additional “head-winds” on account of a salient characteristic shared with other members of that identifable group. An individual with a belief shared by no one else may not be able to demonstrate such collective disadvantage (see for example the approach of the English and Welsh Court of Appeal in Eweida to indirect discrimination on grounds of religion in Directive 2000/78). Thus, the individualistic approach to religion that is appropriate in relation to cases focusing on religious freedom may not always be appropriate in relation to questions of indirect discrimination on grounds of religion where group disadvantage will be part of the analysis. Therefore, the CJEU’s approach of relying on the definition of religion used in fundamental rights litigation in relation to anti-discrimination cases may cause problems in the future (see R. McCrea “Singing from the Same Hymn Sheet? What the Differences between the Strasbourg and Luxembourg Courts Tell Us about Religious Freedom, Non-Discrimination and the Secular State” Oxford Journal of Law and Religion (2016) 5(2) 183-210).

Conclusion

Given the political salience of the issues underlying these cases, the fact that the Court of Justice has adopted a cautious approach is not surprising. There is no consensus in Europe about how best to approach the issue of religion’s role in public life in the context of religous and demographic change. Various countries have tried different approaches. Some countries, such as the UK, have felt it best to allow religious expression in a wide range of public contexts. Others, such as France, have taken the opposite approach and have pursued a policy that sees coexistence as best served by a degree of reticence in relation to religious expression in non-private contexts. Each approach has its critics. Many French people see the approach adopted in France as overly restrictive, just as many British people argue that cohesion and coexistence have not been well served by the UK’s approach. Other states like the Netherlands have switched to some degree from one approach to the other.

In addition, the status of religion, and the issue of whether religious belief should be regarded as being “special” in the sense of being entitled to a greater level of protection than is provided to other forms of belief, is a question that has a significant impact on issues of fundamental rights (where religious freedom can come often at the cost of the rights of others) and constitutional law, where the idea of religion as a private and individual matter is woven into the constitutional norms of a number of European states.

Therefore, it is unsurpising that the Court of Justice has been cautious in its approach. As I wrote previously on this blog, regulating religion’s role in public life is difficult because religion is both a matter of identity (akin to race) and a matter of belief (akin to political opinion). If one views religion as a set of beliefs this calls out for treatment that is entirely contrary to the treatment that would be appropriate if religion is regarded as a form of identity. Different approaches are appropriate in different scenarios. In relation to blasphemy or anti-apostacy laws, it is probably best to see religion as a set of beliefs, in relation to the right to receive services in a shop, it is probably best to see it as a form of identity. In relation to the workplace, there are good reasons for both approaches so it is appropriate that a degree of leeway is allowed, provided that restrictions are applied in a fair and balanced manner.

However, the story of the judgments in Achbita and Bouganoui is not a story of simple deference on the part of the European Court. While the Court of Justice has upheld the compatibility of rules prohibiting the wearing of religious symbols at work with the Directive it has, at the same time taken steps to ensure that such rules do not become a means to target adherents to minority or unpopular faiths. Rules restricting religious influence over law and politics or limiting religous expression in public contexts that were enacted in good faith have sometimes become the subject of exploitation in bad faith by some with exlusionary agendas. The Front National in France, for example, has in recent years, discovered a fervent love for laïcité that it did not have before they discovered that it could be used as a stick with which to beat French Muslims.

I have written before (Religion and the Public Order of the European Union, chapters 6 and 7, OUP 2010) about how the legal and political order of the European Union has tended to percieve more readily threats to secular law and politics and to egalitarian values when they come from minority faiths than when they come from culturally-entrenched forms of Christianity. This does not mean that restrictions on religion in politics or public life ought to go, often they serve important goals. But it does mean that it is important to ensure that such restrictions are applied fairly. The Court of Justice has taken an important step in these cases in this regard. By insisting that bans on religious symbols can be justified only if part of a genuinely systematic and generally applicable prohibition on the display of visible symbols of all kinds of religious, philosophical or political belief, the Court has sought to ensure that the often justifiable desire to curtail expression of controversial beliefs in the workplace cannot be used as a means to selectively target unpopular minorities.

This is an approach that will leave some unsatisfied. It gives employers significant control over the appearance of employees. In addition, what is seen as neutral is culturally specific and so compliance with neutral rules will be more difficult for adherents to minority faiths. However, as noted above, such rules can serve important goals and national courts will still be able to assess in each case whether the operation of the rules in question is proportionate. In any event, it is not clear that any other option was open to the Court of Justice. There are good arguments for and against allowing religous symbols at work and what is fair and appropriate in one context may be unfair an oppressive in another. Sweeping away all workplace rules accross 28 Member States that imposed a general ban on visible expressions of belief and opinion would represent a striking degree of certainty for an international court and would have risked placing the Union on a constitutional collision course with at least one major Member State. The solution of recognising the legitimacy of general bans but requiring that such bans avoid targetting specific faiths seems like a reasonable one.

Barnard & Peers: chapter 9, chapter 20

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Headscarf bans at work: explaining the ECJ rulings

Professor Steve Peers

When can employers ban their staff from wearing headscarves? Today’s rulings of the ECJ have attracted a lot of attention, some of it confused. There have been previous posts on this blog about the background to the cases, and about the non-binding opinions of Advocates-General, and there will hopefully be further more analytical pieces about today’s judgments to come. But this post is a short explanation of the rulings to clear up any confusion.

Background

The EU has long had laws on sex discrimination, and discrimination regarding EU citizens on grounds of nationality. Since 2000, it has also had laws against race discrimination and also a ‘framework directive’ against discrimination at work on grounds of disability, age, sexual orientation or religion. The ECJ has often been called upon to rule on the first three of those grounds, but today’s two judgments (G4S v Achbita and Bougnaoui) are the first time it has been asked to rule on non-discrimination at work on religious grounds.

EU law does not generally apply to other aspects of religion, except that EU law on asylum applies to people who have been persecuted on religious grounds. So today’s judgments are not relevant as regards regulating religion in education, for instance.

It should also be noted that the European Convention on Human Rights (ECHR) protects the freedom of religion.  The European Court of Human Rights – a separate body – has previously ruled on how that freedom applies in the workplace, concluding that in some cases employers must allow employees who wish to wear religious symbols (see Eweida v UK, for example).

The rulings

The G4S ruling is the more significant of the two cases, in which the ECJ’s reasoning is most fully set out. First the Court rules that clothing worn for religious reasons is an aspect of religious belief. Then it concludes that there was no direct discrimination (ie discrimination purely on religious grounds) against Ms. Achbita, who was not allowed to wear a headscarf when dealing with customers, because her employer had a general ban on any employee display of religious or political belief.

Next, the ECJ ruled on whether there was any indirect discrimination (ie discrimination not on religious grounds, but which affected people of a particular religion more than others). Such discrimination can be ‘objectively justified by a legitimate aim…if the means of achieving that aim are appropriate and necessary.’ In the Court’s view, the national court which had asked the ECJ these questions should consider that an employer’s ‘neutrality’ policy regarding customers was ‘legitimate’, and was part of its ‘freedom to conduct a business’.

However, such as policy had to be ‘systematic’ and ‘undifferentiated’ as regards different beliefs. It also should be considered whether it was limited to those workers who ‘interact with customers’, and whether it would have been possible to reassign the employee to a different role without ‘visual contact’ with customers, without the employer taking on an extra burden.

In the second case, the Court ruled that employers could not discriminate due to a customer request that employees not wear a headscarf.  This was not ‘a genuine and determining occupational requirement’ that could justify reserving a job to those who did not wear headscarves.

Summary

The ECJ’s rulings must be applied by the two national courts that requested it to rule. They are also binding more generally on the courts of all 28 EU Member States.

In principle the rulings mean that employers may ban employees from wearing headscarves, but only in certain cases. First of all, the cases only concern customer-facing employees, on condition that the employer has a 'neutrality' policy. The ECJ was not asked to rule on other groups of employees, but its rulings indicate that it would be more difficult, if not impossible, to justify bans in those cases. Nor was it asked to clarify further what a ‘customer-facing’ employee is exactly.

A neutrality policy mean an employer also has to ban other religious or political symbols worn by customer-facing employees. So no kippas, no crucifixes, no turbans - and no icons of Richard Dawkins either. This could be rather awkward in light of the human rights case law referred to above, which says wearing crucifixes (for instance) is sometimes an aspect of an employee's right to manifest her freedom of religion.

There is a thin line between saying that employee headscarves can't be banned just because customers ask for it on the one hand, and allowing employers to ban such clothing in effect due to anticipation of customer reaction. In practice this might prove something of a legal fiction.

The bottom line is that today’s judgments do not constitute a 'workplace headscarf ban', but merely permit employers to establish such a ban – subject to limits which might prove difficult to comply with in practice.

Barnard & Peers: chapter 9, chapter 20

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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

Photo credit: Mizrahilaw.com

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