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

 

 

 

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

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

Photo credit: WeAretheCity