Headscarves at work: the Court of Justice clarifies when employers can ban them

 

Professor Ronan McCrea, University College London

 

Four years ago in the cases of G4S and Micropole, the Court of Justice issued its first major rulings on the compatibility of workplace policies that restrict the wearing of religious symbols by employees with the Framework Directive on discrimination in employment (Directive 2000/78).

 

In these rulings, the Grand Chamber of the Court held that the imposition on employees of a policy of visible neutrality of religion or belief amounted to indirect rather than direct discrimination provided that it was consistently applied to all forms of religion or belief. Policies that targeted the symbols of a particular faith, on the other hand, were to be regarded as directly discriminatory.

 

An obligation of visible neutrality, the Court held could, if sufficiently narrowly tailored, satisfy the test for indirectly discriminatory measures (legitimate aim, pursued by proportionate and necessary means) but was unlikely to be able to meet the test for directly discriminatory measures (genuine and determining occupational requirement).

 

The judgement was criticised both in the media and by some legal scholars. Eleanor Spaventa worried that the invocation of the right to run a business in Article 16 of the Charter of Fundamental Rights as a reason favouring the compatibility of restrictions on employee dress meant that Member States may not be able to take an approach more protective of religious freedom. She also argued that the Court had paid insufficient attention to the fact that neutrality rule might have a more pronounced effect on those of particular ethnic background or a particular gender. Similarly, Joseph Weiler faulted the Court, inter alia, for failing to provide adequate reasons as to why the goal of neutrality was a sufficiently weighty goal to justify the third limb of the proportionality test.

 

When these issues came before the Court again this year in the form of Article 267 references in two cases in Germany, the cases were allocated to the Grand Chamber. However, this was not an indication of a change of approach on the part of the Court. This week’s ruling in the (joined) cases, largely reaffirms the approach previously adopted by the Court although the ruling does provide some additional material that, at least partially, addresses some of the concerns of its critics.

 

Both cases related to employees disciplined for wearing a hijab at work. In IX v WABR eV (‘IX’) WABE, a non-denominational provider of child care services disciplined an employee who worked as a special needs carer for violating its internal rule that required those whose roles involved dealing with parents and children to observe strict political, religious and philosophical neutrality ‘in order to guarantee the children’s individual and free development with regard to religion, belief and politics’. This rule was not applied to those whose work did not bring them into contact with parents and children.

 

In MH Müller Handels GmbH v MJ (‘MJ’) a woman employed as a cashier and sales assistant was disciplined for wearing a hijab at work in violation of a workplace rule that prohibited the wearing of ‘conspicuous, large-sized signs of any political, philosophical or religious beliefs’.

 

There was some overlap in relation to the questions submitted by the national court in each case. In IX the Arbeitsgericht Hamburg asked the Court of Justice:

 

(a) Whether an instruction not to wear visible signs of religion or belief from an employer to an employee who, due to her Muslim faith wears a headscarf, should be regarded as direct or indirect discrimination ‘on grounds of religion and/or gender’ (Confusingly, the English version of the judgment refers to discrimination ‘on grounds of gender’. The French version refers to discrimination ‘fondée sur le sexe’ while the English version of the relevant Directive (Directive 2006/54) refers to ‘less favourable treatment on grounds of sex’. However, the Court refused to engage on the issue of discrimination on this ground on the basis that the referring court had limited its question to Directive 2000/78 which does not address this matter).

 

(b) Whether indirect discrimination on grounds of religion and/or gender can be justified when the employer is seeks to impose a neutrality requirement in order to meet ‘the subjective wishes of its customers’,

and

 

(c) Whether the Directive 2000/78 and Article 16 of the Charter preclude national rules that grant greater protection to freedom of religion or belief (in the light of the provisions of Article 8(1) of the Directive that allows Member States to have provisions more favourable to the principle of equal treatment than those laid down in the Directive.

 

In addition to asking whether national rules more favourable to equal treatment on grounds of religion were permitted (question c above), in MJ the Bundesarbeitsgericht also asked the Court of Justice:

 

(d) Whether the requirements of the directive in relation to justifying indirect discrimination are met by a rule that pursues a policy of neutrality by prohibiting only prominent and large-sized symbols of religion or belief (rather than all such signs).

 

In relation to question (a), the CJEU reiterated its previous ruling that the prohibition on discrimination on grounds of religion or belief applies equally to religious and non-religious philosophical and spiritual beliefs and that ‘since every person may have a religion or belief’ a rule that covers any manifestation of religion or belief without distinction ‘treats all workers of the undertaking in the same way by requiring them, in a general and undifferentiated way, inter alia, to dress neutrally’. Accordingly, such a rule does not constitute direct discrimination notwithstanding that such a rule is capable of causing ‘particular inconvenience’ to workers ‘who observe religious precepts requiring certain clothing to be worn’. In IX the Court noted that an employee wearing a cross had been required to remove it, something that appeared to confirm that the rule was applied across the board (though it noted that verification of this matter was a factual issue for the national court).

 

Having concluded that the rule in IX was potentially indirectly discriminatory, the Court went on to reiterate its finding in G4S Solutions such the indirect discrimination could be justified in the light of Article 16 of the Charter ‘in particular where the employer involves in its pursuit of [the neutrality] aim, only those workers who are required to come into contact with the employer’s customers.’ However, it added a slight gloss on the G4S ruling by noting that a ‘mere desire of an employer to pursue neutrality’ would be insufficient. An employer must, the Court held, demonstrate a ‘genuine need’ for such a policy, ‘taking into consideration, inter alia, the legitimate wishes off those customers or users and the adverse consequences that the employer would suffer in the absence of that policy.’ In MJ it further clarified that ‘the prevention of social conflicts’ in addition to customer preferences may also form the basis of such a demonstrated need.

 

Interestingly in relation to question (d), in MJ, the Court came to a slightly different conclusion in relation to the prohibition on conspicuous, large-sized signs. This rule is, the Court noted ‘liable to have a greater effect on people with religious, philosophical or non-denominational beliefs which require the wearing of a large-sized sign such as a head covering.’ Noting that where a rule is based on a criterion that is ‘inextricably linked to a protected ground’ it must be regarded as being directly discriminatory the Court then states that ‘where the criterion of wearing conspicuous, large-sized signs of political, philosophical or religious belief is inextricably linked to one or more specific religions or beliefs, the prohibition will mean that some workers will be treated less favourably than others on grounds of their religion or belief, and that direct discrimination, within the meaning  of [the Directive] may therefore be established’.

 

This seems rather confusing. The Court had already noted in its conclusion that the rule in IX was indirectly discriminatory that statistically, the ban applied almost exclusively to Muslim women. Yet in MJ it appears to say that because a ban on large sized signs might have a greater effect on those whose beliefs require the wearing of a head covering it may be ‘inextricably linked to a protected ground’ and therefore may be direct discrimination.

 

Perhaps what the Court is saying is that a ban on conspicuous, large signs amounts to a hidden targeting of the signs of a particular faith and therefore amounts to direct discrimination. This would be consistent with its previous rulings in G4S and Micropole where an instruction that focused on the symbols of one faith (‘no headscarf next time’) was found to render it more likely that a restriction would be found to be directly discriminatory. Unfortunately, the tortured way it expresses this point is liable to cause confusion in the future.

 

In relation to the question posed by both referring courts as to whether national provisions more favourable to equal treatment on grounds of religion or belief or freedom of religion and belief are permissible (question (c)), the ruling was clear. The Court stated that the Framework Directive ‘did not itself effect the necessary reconciliation between freedom of thought, conscience and religion and the legitimate aims that may be invoked to justify unequal treatment (…) but left it to the Member States and their courts to achieve that reconciliation’. The Directive has left a ‘margin of discretion to Member States taking into account the place accorded to religion and belief within their respective systems’. While this margin goes ‘hand in hand with supervision by the EU judicature’ the Court noted the lack of consensus on these issues amongst the Member States. Accordingly, ‘national provisions protecting freedom of thought, belief and religion , as a value to which modern democratic societies have attached great importance for many years, may be taken into account as provisions more favourable to the protection of the principle of equal treatment within the meaning of Article 8(1) of the Directive.

 

 This ruling largely reaffirms the rulings in G4S and Micropole. Despite some confusion, it appears that neutrality requirements, if genuinely and systematically applied to all forms of religion and belief, are in general to be regarded as indirectly, not directly discriminatory. Customer preferences and the need to avoid social conflict may provide the justifications for any indirect discrimination that such neutrality policies involve.

 

It is disappointing that the Court chose not to address the issue of sex/gender discrimination on the narrow and technical grounds that that referring court had only mentioned Directive 2000/78 which does not cover this issue. With the national court having raised the issue of sex/gender discrimination, the CJEU could have given guidance as to how the relevant legislation in this area should be interpreted.

 

The Court does seem to have sought to address some of the critics of its previous rulings. This ruling has greater emphasis on the need for employers to demonstrate the necessity of a neutrality policy and the, admittedly confusingly phrased, conclusion that bans that selectively target large symbols are potentially directly discriminatory would seem to be a step towards stricter control of bans that amount to hidden targeting of one faith.

 

The Court has also addressed the concern that its invocation of Article 16 as a justification for neutrality policies precluded Member States from taking more protective measures.

 

Indeed, this underlines how the Court has maintained its cautious approach in its area. This seems justifiable. Amending the Framework Directive would need the unanimous consent of all Member States. If the Court were to get its interpretation wrong the chances of remedying this politically are very low.

 

As I have written before, Europe is in the midst of unprecedented religious change. After centuries of dominance in most Member States, Christianity is in rapid decline. Non-belief is in rapid growth, as is the Muslim population of Europe. Any one of these changes alone would produce endless unanticipated consequences. We do not have a store of precedents that tell us how coexistence is best achieved in this context. There are deep divisions between Member States on these matters.

 

Religion is hard for the law to regulate as it is both a usually immutable identity and a series of often controversial, chosen beliefs. The treatment that is appropriate for an immutable identity is often inappropriate for a set of beliefs and vice versa. A religious symbol can be worn to express a belief or to reflect one’s identity or simply as a matter of habit yet it is hard to design a law that can distinguish between these different situations. Objection to a religious symbol at work may often be the result of pure bigotry, but it may sometimes be a legitimate reaction to a controversial belief.

 

The management of religious diversity is equally tricky. For some states, coexistence is best achieved by requiring everyone to hold back on expressing their religious identity in shared contexts and by seeking to stress a shared a-religious citizenship. Other states have felt it best to protect religious expression and identity in a wide range of contexts. Each approach has its fans and its critics and the data as to which approach is better at producing inter-religious friendships, mutual respect and widespread adherence to liberal values is very mixed. In these circumstances it would be immodest in the extreme for the Court of Justice to decide it knew the best approach and to impose it on all 27 states.

 

That said, values are important and total deference on the part of the Court would be equally inappropriate. Opportunistic embrace of secularist principles by those with exclusionary agendas is a recurrent problem. A duty of neutrality must not be used as a disguised means of excluding minorities such as European Muslims. Both its previous rulings and IX and MJ see the Court taking incremental but significant steps that seek to prevent this by ensuring that any neutrality policy imposed by employers is applied consistently to all forms of religion and belief rather than targeting one faith. In Micropole, open targeting of the symbols of one faith was constrained, in MJ, the Court appears to move towards restricting hidden targeting to a greater degree (though it ought to have expressed itself more clearly on this point).

 

This will not bring an end to exclusionary practices in the workplace and falls short of the desires of some commentators but in the changing and unpredictable situation that Europe finds itself in, this is probably as big a step as it is wise for a multi-national court to take.

 

Barnard and Peers: chapter 9, chapter 20

Photo credit: mizrahilaw.com

 

 

 

Freedom to insult? Balancing freedom of expression with religious tolerance in ECHR case law

Professor Steve Peers, University of Essex

A recent judgment of the European Court of Human Rights has raised again the question of whether there should be limits on free speech when someone might be offended by it – in this case, concerning the Muslim faith. It’s a good opportunity to explain the context of the case and assess what – if any – limits should be acceptable on free speech in such cases.

Judgment

The saga of ES v Austria began at a public seminar on “Basic Information on Islam” organised by the institute of a right-wing Austrian political party. An undercover journalist complained to the police about some of the comments made at the seminar (in particular about Mohamed as inclined to pedophilia), and the speaker was prosecuted. She was ultimately convicted and ordered to pay a small fine as a penalty, for breach of Article 188 of the Austrian Criminal Code:

 “Whoever, in circumstances where his or her behaviour is likely to arouse justified indignation, publicly disparages or insults a person who, or an object which, is an object of veneration of a church or religious community established within the country, or a dogma, a lawful custom or a lawful institution of such a church or religious community, shall be liable to up to six months’ imprisonment or a day-fine for a period of up to 360 days.”

 The conviction was upheld on appeal throughout the national courts, and the applicant then complained to the European Court of Human Rights (ECtHR) that her right to freedom of expression under Article 10 of the European Court of Human Rights (ECHR) had been infringed. Since her free expression had obviously been penalised, the crucial issue in the case was whether the interference with that right was justified under Article 10(2) ECHR, which provides:

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

The restriction in this case was “prescribed by law” (as can be seen above), and so the issue is whether the restriction was “necessary in a democratic society”. The Court began its assessment by reiterating (from its prior case law) that freedom of speech is “one of the essential foundations of a democratic society” and applies not just to statements that are “regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb”. Article 10(2) provides “little scope…for restrictions on political speech or on debate on questions of public interest”. In particular, believers in a religion, “irrespective of whether they do so as members of a religious majority or a minority, therefore cannot expect to be exempt from criticism. They must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith.”

Having said that, though, the “duties and responsibilities” referred to in Article 10 include (referring again to case law):

“the general requirement to ensure the peaceful enjoyment of the rights guaranteed under Article 9 [freedom of religion] to the holders of such beliefs including a duty to avoid as far as possible an expression that is, in regard to objects of veneration, gratuitously offensive to others and profane….Where such expressions go beyond the limits of a critical denial of other people’s religious beliefs and are likely to incite religious intolerance, for example in the event of an improper or even abusive attack on an object of religious veneration, a State may legitimately consider them to be incompatible with respect for the freedom of thought, conscience and religion and take proportionate restrictive measures….In addition, expressions that seek to spread, incite or justify hatred based on intolerance, including religious intolerance, do not enjoy the protection afforded by Article 10 of the Convention.”

In this context, prior case law had concluded that ECHR Contracting States “enjoy a certain margin of appreciation” in this field – meaning that the ECtHR does not intensively review how they strike the balance between freedom of speech and the protection of religious sensibilities, in particular as there is no “uniform European conception” of how to strike this balance. Moreover, ECHR States also “have the positive obligation under Article 9 of the Convention of ensuring the peaceful co‑existence of all religions and those not belonging to a religious group by ensuring mutual tolerance”. (A “positive obligation” is a legal requirement for the State to take action to protect individual rights, not just to refrain from action such as banning speech or prosecuting people for their comments). A State “may therefore legitimately consider it necessary” to limit the free speech of some which is “judged incompatible with respect for the freedom of thought, conscience and religion of others”, although ultimately the ECtHR exercises some review over how a State strikes that balance in each particular case.

Prior case law has turned on whether a value judgment has sufficient factual proof to support it, and the ECtHR’s role is not “to take the place of the national authorities”, but to review if their decisions are based “on an acceptable assessment of the relevant facts…and whether the interference corresponded to a “pressing social need” and was “proportionate to the legitimate aim pursued””, in light of the “content of the statements” and “the context in which they were made”. Also, “the nature and severity of the penalty imposed are also factors to be taken into account”. If the national authorities have already applied such a balancing exercise in line with these criteria, “the Court would require strong reasons to substitute its view for that of the domestic courts”.

Applying those principles to this case, the subject matter was “particularly sensitive”, and so “the domestic authorities had a wide margin of appreciation” because “they were in a better position to evaluate which statements were likely to disturb the religious peace in their country”. The seminars in question were public, and Austrian law did not simply “incriminate all behaviour that is likely to hurt religious feelings or amounts to blasphemy, but additionally requires that the circumstances of such behaviour were able to arouse justified indignation, therefore aiming at the protection of religious peace and tolerance.” The national courts “extensively explained why they considered that the applicant’s statements had been capable of arousing justified indignation”, and the ECtHR agreed with the lower court “that presenting objects of religious worship in a provocative way capable of hurting the feelings of the followers of that religion could be conceived as a malicious violation of the spirit of tolerance, which was one of the bases of a democratic society”.

The Court went on to agree with the national courts that in this case, value judgments did not have “sufficient factual basis”, and rejected the argument that “a few individual statements had to be tolerated during a lively discussion”. In the judges’ view, “it is not compatible with Article 10 of the Convention to pack incriminating statements into the wrapping of an otherwise acceptable expression of opinion and deduce that this would render the statements exceeding the permissible limits of freedom of expression passable.” Finally, the Court took into account the very modest sanctions applied to the speaker.

Comments

Context

As noted at the outset, it’s necessary to explain the context of this case – given that it seems to be widely misunderstood. First of all, the ECtHR is not an “EU court” applying EU law, but the court of 47 European countries applying the ECHR, an international treaty separate from EU law. EU law touches on religious issues when it comes to religious discrimination in employment (see the case law discussed here), animal welfare issues, or persecution of refugees on grounds of religion – but has nothing to do with the issue of prosecution for offending religious sensibilities.

Secondly, the ECtHR is in no sense applying “Sharia law” here. The complaint was not made by a Muslim organisation, but by an undercover journalist. The Austrian law was not enacted solely to protect the Islamic faith, but other faiths too; and it was not motivated by Islamic doctrine. The ECtHR distinguishes the Austrian law from a ban on “blasphemy”, considering that it requires an additional element. Nothing in the judges’ reasoning refers to “defaming” Mohamed (although the Austrian Supreme Court is quoted as using that term).  Nor does the Court require other countries to follow Austria’s lead: although it refers to positive obligations to protect freedom of religion, it does not spell out what they are, for the obvious reason that the applicant was not arguing a failure by Austria of any positive obligations in this case.

Thirdly, as my summary of the judgment sets out, there’s nothing unusual or exceptional about the underlying legal reasoning in the Court’s approach here. It’s applying its long-standing doctrine related to the balance between freedom of expression and freedom of religion. This is indeed an area where the “margin of appreciation”, giving considerable deference to States’ choices, has long been applied widely, although States do not always win. (Have a look at the cases linked to in the judgment, or the summary in this fact sheet, for more details: note that there are judgments arguably deferential to Christianity, not just Islam).

Finally, on the same point, it should be noted that the Court, sometimes criticised for being activist, is in this case conversely criticised for being deferential to States. The judges leave the remedy for those who criticise the law in Austria (or similar laws elsewhere) as the political process in Austria, rather than the remote court in Strasbourg. But those who usually criticise foreign judges’ interference now seem disappointed that those foreign judges didn’t interfere to effectively endorse their own criticism of Islam.

Assessment of the judgment

Although some of the Court’s critics seem to have misunderstood the context of the judgment, I would agree that there is a lot in the judgment to criticise. What I would question here is both the Court’s application of its “margin of appreciation” doctrine to the facts of this case, and its failure to reconsider that doctrine in general. On the first point, while I agree that the small fine is relevant, it’s odd that the Court however fails to consider the absence of any complaint by a Muslim organisation as such, given that its reasoning turns on the importance of the objective of ensuring religious peace. Its distinction between marrying one child and a preference for children in general comes across as sophistry. And its concern that anyone could have attended the political seminar overlooks the broader context of an Internet full of critics of Islam: if the problem is a forest, does it make sense to prosecute an individual tree?

On the Court’s failure to reconsider its doctrine in general, there’s a procedural point here: the judgment was delivered by a small Chamber of few judges, not a Grand Chamber with many more; and only the Grand Chamber has the authority to reconsider long-standing jurisprudence. (The applicant can request the Grand Chamber to review this Chamber judgment). But I would hope that the Grand Chamber has the opportunity to do so, and uses it. Here’s why.

As a confirmed agnostic who attends Catholic mass, I can see the conflict of rights here in personal terms. Faith is at the core of many people’s personal identity. It inspires the spiritual, explains the inexplicable, and consoles the inconsolable; it provides a community to celebrate the breaking of fasts, the liberation from slavery or the miracle of resurrection. It celebrates birth, codifies life, and commemorates death – yet offers hope of immortality.

Yet I can see why some wish to condemn one faith, or all faiths. There’s no shortage of abuse, discrimination, persecution, hatred or violence based on religion. And some generally believe that all religions are nonsense: that in a scientific age, with lots of suffering before death that we should be concerned about, it’s long past time to go cold turkey on the opiate of the masses.

My answer to the potential conflict of rights is to respect others’ right to believe what they want to believe (or not believe). But others have a different view. And freedom of speech is not just the freedom to calm people down: it’s also the freedom to wind people up, turn people on, or piss people off.

The flaw with the Court’s traditional case law is that it places too much priority on the right not to be offended, and not enough on the right to offend. Indeed, the Court quotes – but does not explicitly follow – a report from the Venice Commission, which recommends that States should abolish the offence of blasphemy or religious insult (the latter, with added elements, seems to be the basis of its recent judgment) and rely solely instead on incitement to hatred. I would go further still, and criminalise only incitement to hatred which advocates violence or other criminality.

So “Muslims are vile; let’s attack them” should be criminal; as should the attack itself, or the criminal damage entailed by a swastika drawn on a synagogue. I take the point that swastikas don’t draw themselves, and that if someone merely says “Muslims are vile”, his listeners may well add “let’s attack them” in their own minds and act on it. But there needs to be a line drawn somewhere; a whole range of statements could trigger a potentially violent listener, so we have to exercise some judgement as to which statements should reasonably be criminalised.

Moreover, incriminating many critics of Islam (or others considered intolerant) who don’t directly advocate violence doesn’t solve the problem of intolerance; it fuels it, allowing those critics to parade themselves as free speech advocates, or even martyrs.  Prosecuting them for non-violent statements simply attracts more attention to their views. (This is also an answer to the valid “it’s easy to advocate freedom of speech when you’re not the target” arguments).

Two important qualifications, though. First of all, the freedom of expression is not a right to a platform: there’s no legal obligation for the mainstream media or social networks, for instance, to give any particular view uncritical attention, or any attention at all. Secondly, freedom of expression works both ways (that’s rather the point): it’s equally applicable to those who want to mock or react to Islamophobes or their ilk, and criticising someone’s views is not the same as “silencing” them. There’s nothing quite as pathetic as (for instance) the sight of the supporters of Trump’s crassness and intolerance crying crocodile tears in reaction to a comedian making a joke about his press secretary’s eye-shadow.

Ultimately, though, the problem with banning non-violent criticism of religion isn’t just about tactics; it’s about the paradox of intolerance. It’s logically impossible to preach tolerance while saying that dissenting views should be banned – even if those views are not very tolerant themselves. Fundamentally, a good idea – whether religious or secular – should speak for itself, not shut its critics up.  

Barnard & Peers: chapter 9

Photo: Islamic Centre, Vienna; photo credit: Wien.info

Is Data Protection Coming Home? The CJEU on data protection law and Jehovah’s Witnesses – and political canvassing?

Professor Steve Peers, University of Essex

You’re in the shower, and the doorbell rings. It might be the Amazon delivery you were expecting, with your daughter’s present – and it’s her birthday tomorrow. You leap out of the shower and dash wetly down the stairs to open the door in time. But it’s only a couple of Jehovah’s Witnesses.

After responding to their entreaties in much the same way that Boris Johnson responds to business, you close the door, and think no more about them. Yet they are still thinking about you. In order to focus more effectively on who to bother about God again, they keep a record of each household they visit, with categories of (say) “Believer”, “Unbeliever”, or (if you couldn’t find a towel) “Satanist”.

It’s not just religious enthusiasts who might knock on your door and gather personal data, of course. There are also businesses, charities and political canvassers. For the Brexit Referendum, I joined the local Labour party to knock on doors in the leafy London Borough of Remainey. If I recall correctly, we kept records of voters in the categories of “Remain”, “Leave”, “didn’t say” and “absent”. (It seems the Labour party has stopped using the category of “Bigoted Woman”).

These activities are of interest not just to preachers or spin doctors, but also data protection authorities. But does data protection law apply at all to such door-knocking? The CJEU answered that question yesterday, in a new judgment answering questions raised in a dispute between the Finnish data protection board and Jehovah’s Witnesses.

Facts

The Finnish data protection board had ordered the Jehovah’s Witnesses to stop processing personal data unless they complied with Finland’s version of the EU’s data protection Directive (since replaced by the infamous GDPR). The board asserted that both the religious community and its members were “data controllers” with liability for the correct application of data protection law. A lower court agreed with the legal challenge brought by the Jehovah’s Witnesses, but on appeal a court asked the CJEU to interpret the relevant provisions of EU law.

In practise, the Jehovah’s Witnesses take records (names, addresses, religion, family status) of their meetings with householders. There’s also a list (perhaps a rather longer one) of those who would like the Jehovah’s Witnesses never to darken their door again. The dispute concerned the main list: did it fall within the scope of EU law at all, or was it rather outside the scope of that law because of the “household exception” or the non-exhaustive security exception to it, or because the notes were too disorganised to form part of a “filing system”. Furthermore, if the Directive did apply, were both the community and its individual members data controllers?

Judgment

The CJEU began by asserting that the exception for state security and similar areas did not apply to Jehovah’s Witnesses, as that exception could only apply to acts of the State. Secondly, the household exception did not apply either, because following prior case law on home security cameras (discussed here), that exception did not apply to activity directed outward from the household. While proselytisation was covered by the EU Charter of Rights as an aspect of freedom of religion, that did not mean that door-knocking fell within the household exception.

Next, was the note-taking part of a “filing system”? The Court ruled that the Directive “broadly defined” this notion: the requirement that the data be “structured according to specific criteria” is “simply intended to enable personal data to be easily retrieved” (para 57). No data sheets, specific lists, or other method of processing personal data was necessary to show the existence of a “filing system”. In this case, it was sufficient that the data was structured according to the Jehovah’s Witnesses’ criteria for a “filing system” to be present.

Finally, are there multiple data controllers here? Following its recent judgment on Facebook fan pages (discussed here), the CJEU reiterated a “broad definition” of that concept, although that did not mean that every data controller had equal responsibility, or had to have access to the data to be a controller. In this case, the coordination of its members’ activity by the Jehovah’s Witnesses community made them both responsible for the data processing. This conclusion wasn’t affected by the Treaty provision on the autonomy of religious bodies, following the recent judgment on discrimination law and religious bodies (discussed here).  In effect, such autonomy does not grant them a general exemption from EU law. Compliance with that law is, in effect, one more cross for them to bear.

Comments

It makes sense that the household exception does not apply to Jehovah’s Witnesses, given that in practice many homeowners either do not open their doors to the eager evangelists, or slam the doors in their faces if they do. It’s also striking that the Court takes a broad definition of “filing systems”. That’s consistent with its broad interpretation of the scope of EU data protection law in many cases, and its interpretation of “data controller” reiterated here; but UK data protection lawers will be aware that it contrasts with the narrower definition of “filing systems” in UK case law. The Court’s emphasis on joint responsibility of data controllers echoes its recent judgment on Facebook and friends, as noted above.

That leads us to the broader implications of the judgment: its potential impact on politics. There’s no reason to doubt that the judgment applies equally to political canvassing, as the collection of data and relationship with householders is similar, and the Charter protection for freedom of expression would by analogy not protect parties from the application of data protection law either. The insistence on joint responsibility of data controllers poses a possible complication for door-knockers of either type: they must be aware not only of the inspiring words of Jesus Christ or Jeremy Corbyn, but also the infinitely drier text of the GDPR, a prospect which surely enthuses not the many, but the (very, very) few.

But while we know that EU data protection law applies to such activities, and that responsibility is shared, we don’t know how to apply the law in such cases, as the Court wasn’t asked. (The earlier ruling on home security cameras similarly leaves such possible questions unanswered). On what grounds can the data be processed? Must homeowners give their consent to the processing for specific reasons? One can imagine that those who are already reluctant to discuss their faith with Jehovah’s Witnesses will be even more reluctant to discuss the minutiae of data protection consent with them too. Can the legitimate interest of evangelists or political canvassers justify the processing of data? Or can a statute validly regulate this issue? (One suspects that politicians will be particularly keen to find time to legislate to justify their own activities, if necessary).

The judgment – combined with the recent Facebook fan page judgment – might also have implications not only at the low-tech end of political canvassing, but at the high-tech end too. Today sees the publication of the UK Information Commissioner’s report into allegations of breaches of data protection law during the Brexit referendum, including also allegations about Facebook’s work with Cambridge Analytica. The ICO also published suggestions on data protection law and the democratic process. (See also the recent publications from the Electoral Commission and an Independent Commission on Referendums). Traditionally it’s been easier to address concern about the fairness of political processes because people wear red or blue rosettes when knocking on the door, or parties identity themselves in political literature or broadcasting. It’s far harder where online political messaging is questionably funded, poorly regulated (particularly as regarding funding limits and foreign funding) and frequently dishonest.  Recent judgments and regulatory efforts are baby steps towards addressing these essential concerns.

Photo credit: JW.org

Salvation outside the church? The ECJ rules on religious discrimination in employment

Dr Ronan McCrea, Senior Lecturer in Law, University College London

Background

The Court of Justice has issued its first major ruling on the reconciliation of the autonomy rights of religious organisations with the right of employees (or potential employees) of such organisations to be free of discrimination.

In 2012 Vera Egenberger applied for a fixed term post advertised by the Evangelisches Werk für Diakonie und Entwicklung, which is a body associated with the Evangelische Kirche in Deutschland (a German Protestant church). The post advertised sought a person who could prepare a report on Germany’s compliance with the United Nations International Convention on the Elimination of All Forms of Racial Discrimination. Ms. Egenberger had significant experience in this area and applied for the post. However, there was a problem. Ms. Egenberger is a person who does not have a religious faith and the relevant advert included the following statement:

‘We require membership of a Protestant church, or of a church which is a member of the Arbeitsgemeinschaft Christlicher Kirchen in Deutschland (Cooperative of Christian Churches in Germany), and identification with the welfare mission. Please state your membership in your curriculum vitae.’

Ms. Egenberger was not called for interview. She took a case in the German courts alleging discrimination on grounds of religion.

As discrimination in employment on grounds of religion is regulated by EU law, in the form of Directive 2000/78 (which also bans discrimination on grounds of disability, age or sexual orientation in employment), when the case came before the Bundesarbeitsgericht (Federal Labour Court) it decided to make a reference to the Court of Justice to clarify the interpretation of EU law. The key issue in the reference was whether the scope of the exemption from the duty not to discriminate on grounds of religion or belief granted by German law to religious organisations was compatible with Directive 2000/78.

The issue of exemptions from the prohibition on discrimination on grounds of religion for religious employers is addressed by Article 4(2) of the Directive which states:

‘…. in the case of occupational activities within churches and other public or private organisations the ethos of which is based on religion or belief, a difference of treatment based on a person's religion or belief shall not constitute discrimination where, by reason of the nature of these activities or of the context in which they are carried out, a person's religion or belief constitute a genuine, legitimate and justified occupational requirement, having regard to the organisation's ethos. This difference of treatment shall be implemented taking account of Member States' constitutional provisions and principles, as well as the general principles of Community law, and should not justify discrimination on another ground.’ (emphasis added).

The relevant German law implementing the directive provided that:

‘….a difference in treatment based on religion or belief shall also be admitted in the case of employment by religious societies, by institutions affiliated therewith, regardless of legal form, or by associations whose purpose is to foster a religion or belief in the community, where a given religion or belief constitutes a justified occupational requirement, having regard to the employer’s own perception, in view of the employer’s right of autonomy or by reason of the nature of its activities.’ (paragraph 9(1) of the Allgemeine Gleichbehandlungsgesetz, emphasis added).

This legislation, has been interpreted in the light of the German constitutional guarantee that states:

‘Religious societies shall regulate and administer their affairs independently within the limits of the law that applies to all. They shall confer their offices without the involvement of central government or local authorities.’ (Grundgesetz Article 140).

This has meant that the consistent approach of the German courts has been that the decision as to whether a particular role within a religious organization needs to be limited to those of a particular faith was for the religious employer to take. The role of the courts has been limited to plausibility review, on the basis of a religion’s self-conception defined by belief.

The national court harboured doubts as to whether the approach of German law in allowing the religious employer to determine for itself, subject only to plausibility review by the courts, whether its beliefs required a particular role to be reserved to those of a particular faith, was compatible with the directive and therefore made a reference to the Court of Justice under Article 267.

The Ruling: A More Balanced Approach Needed

The Court of Justice’s ruling made it clear that German law had gone too far by allowing such a wide scope for religious employers to determine for themselves whether a particular job could be reserved to those of a particular faith.

It noted that Article 4(2) of the Directive allowed the discrimination on grounds of religion only if having regard to the nature of the activity concerned or the context in which it is carried out, ‘religion or belief constitute[s] a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos’ and concluded that:

‘if review of compliance with those criteria were, in the event of doubt as to that compliance, the task not of an independent authority such as a national court but of the church or organisation intending to practise a difference of treatment on grounds of religion or belief, [this provision of the Directive] would be deprived of effect.’

Interestingly, although the employer had cited both the guarantee of freedom of religion or belief (Article 10 of the Charter of Fundamental Rights) and Article 17 of the Treaty on the Functioning of the European Union, which provides that the Union ‘The Union respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States’, the Court also relied heavily on constitutional principles to bolster its conclusion that excessive leeway had been granted to religious employers by German law.

The Court noted that Directive 2000/78 was merely a ‘specific expression, in the field covered by it, of the general prohibition of discrimination laid down in Article 21 of the Charter’ (which sets out a general ban on discrimination). It also noted that that when an individual establishes before a national court facts from which it may be presumed that there has been direct or indirect discrimination then, under Article 10 of the Directive, it is for the respondent to prove that there has been no breach of that principle. Thus, the need under Article 47 of the Charter to provide effective judicial protection of EU law rights meant that restricting the ability of the national courts to review the decision of an employer to impose a discriminatory requirement would be contrary to EU law.

Next, the Court held that the objective of Article 4(2) of the Directive was to ensure “a fair balance” between the autonomy rights of religious organisations and the right of workers to be free from discrimination. The Directive “sets out the criteria to be taken into account in the balancing exercise” and in the event of a dispute it must be possible for the balancing exercise to be reviewed by a national court. For the Court, the commitment to respecting the status of religious organisations in Article 17 of the Treaty could not change this conclusion.

That article’s function was:

‘to express the neutrality of the European Union towards the organization by the Member States of their relations with churches and religious associations and communities […] [and] is not such as to exempt compliance with the criteria set out in Article 4(2) of Directive 2000/78 from effective judicial review.’

Guidance on the Test to Be Applied

Having found that the German legislation was not compatible with the Directive the Court then had to address two further interesting issues. First, it had to give guidance to the national court on the question of how the ‘fair balancing’ ought to be carried out and then it had to advise on how to implement the consequences of its finding in the case.

In relation to how to carry out the ‘fair balancing’ the Court had to walk a tightrope. It acknowledged that under ECHR case law, states are precluded from assessing the legitimacy of the beliefs of a religious organization. However, it also had to ensure that the imposition of an occupational requirement relating to religion or belief was, in the words of the Directive ‘genuine, legitimate and justified, having regard to [the] ethos [of the religious employer]’. Thus it had to decide how to recognize the necessarily subjective requirements of the ethos of the employer, with the seemingly objective requirements of the ‘genuine, legitimate and justified’ test.

The Court adopted an approach that is significantly more objective than the approach taken in German law. It set out a test under which religious organisations must show an ’objectively verifiable existence of a direct link between the occupational requirement imposed by the employer and the activity concerned.’ Thus, in order to meet Article 4(2)’s requirements that the difference in treatment on grounds of religion be ‘genuine, legitimate and justified’ the Court held that:

‘To be considered ‘genuine’: ‘professing the religion or belief on which the ethos of the church or organisation is founded must appear necessary because of the importance of the occupational activity in question for the manifestation of that ethos or the exercise by the church or organisation of its right of autonomy.’

To be considered ‘legitimate’ it found that the national court must ‘ensure that the requirement of professing the religion or belief on which the ethos of the church or organisation is founded is not used to pursue an aim that has no connection with that ethos or with the exercise by the church or organisation of its right of autonomy.’

And to be considered justified the CJEU set down that ‘the church or organisation imposing the requirement is obliged to show, in the light of the factual circumstances of the case, that the supposed risk of causing harm to its ethos or to its right of autonomy is probable and substantial, so that imposing such a requirement is indeed necessary.’

Finally, although a proportionality requirement is not included in the text of Article 4(2) (and is included in other Articles of the Directive), the Court held that as proportionality is a general principle of EU law, the exemption given by Article 4(2) is to be read as being subject to a proportionality requirement.

Applying the Ruling

Given the possibility of a clash between German law and the requirements of the Directive the German court asked for guidance on how it should proceed if it proved impossible to interpret domestic law so as to comply with the Directive (bearing in mind the contra legem exception in the Marleasing line of case-law on the indirect effect of Directives; ie a national court cannot be required to interpret national law consistently with a Directive to the extent of ignoring the express wording of national law).

The Court seemed to doubt that an interpretation consistent with EU law was impossible, noting that the duty to interpret national law consistently with EU law included a duty for national courts ‘to change their established case-law where necessary’ (referring to the DI judgment on age discrimination, discussed here). However, it went on to say that should consistent interpretation prove impossible then the Court should disapply national law and give effect to the relevant EU law rights itself.

It justified this position on the basis that Directive 2000/78 did not establish the right to equal treatment. Rather it sets out a framework for combatting discrimination on various grounds. The right to equal treatment is, the Court held, a general principle of law and is enshrined in Article 21 of the Charter. Given that Article 47 of the Charter requires that adequate judicial protection be given to such rights, national courts have to ensure ‘the judicial protection deriving for individuals from Articles 21 and 47 of the Charter and to guarantee the full effectiveness of those articles by disapplying if need be any contrary provision of national law.’ This develops earlier case law on the issue of when the Charter itself does (and does not) have direct effect, in particular the AMS case discussed here; and it confirms the UK case law on the direct effect of Article 47 (Vidal-Hall and Benkharbouche, discussed here and here).

Conclusion

The Court of Justice has given a notably constitutionalized interpretation of the Directive in this case. It has relied on the Charter and general principles of law to read a proportionality test into Article 4(2) that did not appear in the text. It has insisted on proportionality as the framework within which the ‘fair balancing’ of the autonomy rights of religious employers and equal treatment rights of employees must take place.

This approach is in tension with recent trends in the caselaw of the Strasbourg Court. In cases such as Fernandez Martinez v Spain, the Court of Human Rights had moved away somewhat from the balancing of rights seen in its earlier caselaw and had moved closer to the ‘ministerial exemption’ model used in the United States, under which religious organisations have an absolute exemption from non-discrimination laws in respect of roles that include religious functions. Given the strong emphasis placed on proportionality by the EU legal order, unsurprisingly, in Egenberger, the Court of Justice has clearly come down in favour of the balancing approach (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, 198-99).

The Court’s insistence that EU non-discrimination law merely codifies a self-executing (and horizontally directly effective) constitutional general principle of non-discrimination law represents a continuation of the controversial line of cases beginning in Mangold which has attracted significant criticism, including from national courts given the potential for legal uncertainty that such an approach involves. Here, the Court of Justice has made it clear that the EU’s constitutional commitment to proportionality means that religious bodies may only impose discriminatory conditions on employees when it is proportionate to do so and national courts must be empowered to ensure religious employers do not exercise their right to discriminate in a disproportionate way.

This is in tension with the approach adopted by the German legislature which, in the light of German constitutional guarantees of religious autonomy, gave very restricted powers to the courts to second guess the decisions of religious bodies in this way. Given that EU and German constitutional norms appear to be in tension with each other in this way it will be interesting to see how this ruling is applied by the national court. The German constitutional provisions on religious autonomy go all the way back to the Weimar constitution and are taken very seriously, though it may be an exaggeration to view them as constituting the kind of core ‘constitutional identity’ that might trigger a refusal by the German courts to give primacy to EU law.

Barnard & Peers: chapter 9, chapter 20

Photo credit: Wikimedia Commons

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

Photo credit: nathuLAW