Faith At Work: The Cjeu’S Headscarf Rulings

Ronan McCrea*

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

Almost seventeen years on from the adoption of the Framework Directive on discrimination inwards employment, the Court of Justice has issued its starting fourth dimension major decisions inwards relation to discrimination inwards work on grounds of religion. In doing so the Court entered into territory that is extremely fraught inwards political damage together with is thence highly unsafe for an international courtroom such every bit the CJEU.

The flat to which multi-faith societies tin require individuals to refrain from expressing maybe controversial religious identities or beliefs inwards shared spaces such every bit the workplace has never been an slowly question. But it has teach significantly to a greater extent than hard inwards recent years since the enquiry of religion’s role inwards monastic enjoin has teach fountain upward amongst highly combustible political issues such every bit migration, changing norms inwards relation to gender together with sexuality, national identity together with fifty-fifty national security.

It must thence have got been amongst considerable trepidation that the Court of Justice proceeded to give its ruling on ii cases that involved challenges past times ii women who lost their jobs for refusing to take away the Islamic headscarves piece at work.

The facts of the ii cases were subtly, but importantly, different. In Achbita (Case C-157/15), the Claimant began working every bit a receptionist at G4S inwards Feb 2003 together with complied amongst what was, at the time, an unwritten dominion inside G4S that workers could non vesture visible signs of their political, philosophical or religious beliefs at work. In Apr 2006 Ms. Achbita informed her employers that she intended to vesture an Islamic headscarf at piece of work together with was told that she could non exercise so because this violated G4S’s dominion requiring philosophical together with religous neutrality inwards their employees attire. In May 2006 G4S adopted a alter to workplace rules making the ban on visible signs of political, philosophical or religous belief a written dominion together with inwards 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 past times a representative of Micropole at an Oct 2007 educatee recruitment fair that wearing an Islamic headscarf may pose problems when she was inwards contact amongst customers. She began to piece of work at Micropole inwards Feb 2008 initially wearing a bandana together with so a headscarf. In May 2009, a client of Micropole’s amongst whom Ms. Bouganoui had worked, informed her employers that Ms. Bouganoui’s wearing of the headscarf had upset only about of their employees together with requested that in that location live on “no veil side past times side time”. Ms. Bouganoui refused her employers asking to confirm that she would concur non to vesture the headscarf on futurity occasions together with was fired inwards June 2009.

The Belgian together with French Courts of Cassation both referred questions relating to the prohibition on discrimination inwards work on grounds of faith 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 courtroom asked  whether a ban on a woman someone Muslim employee wearing the headscarf at piece of work should live on regarded every bit direct discrimination when the employer inwards enquiry bans all employees from wearing whatever outward sign of political, philosophical or religious beliefs at work. This is potentially of import every bit nether the Directive, a straight discriminatory dominion tin only live on justified past times a “genuine together with determining occupational requirement”. Indirectly discriminatory rules, on the other hand, tin live on accepted if it is shown that they serve a legitimate aim together with are pursued past times proportionate together with necessary means.

In Bouganoui, the French courtroom asked the Court of Justice whether the wishing of an client non to have got services supplied past times an employee inwards an Islamic headscarf could live on seen every bit a genuine together with determining occupational requirement nether the Directive (seemingly assuming that the restriction inwards enquiry was straight discriminatory).

Therefore, both claims focused on the number of direct discrimination. However, inwards add-on to ruling on the number of direct discrimination, the Court of Justice decided to give pregnant guidance inwards relation to the enquiry of justification of bans on religious symbols every bit indirectIy discriminatory measures.

In both cases, the Court noted that the Directive does non define faith but does refer to the rights contained inwards the European Convention of Human Rights which include the correct to liberty of thought, conscience together with faith inwards Article 9. It also notes the reference to the mutual constitutional traditions of the Member States which it notes were reaffirmed inwards the European Union Charter of Fundamental Rights which includes a similar correct inwards Article 10. Both of these rights include, the Court found, the correct to manifest religious faith inwards public.

General Bans on Symbols of Opinion together with Indirect Discrimination

However, inwards relation to Ms. Achbita, the Court found that the dominion preventing her from wearing her headscarf at piece of work did non amount to direct discrimination every bit it referred to visible signs of political, philosophical or religious beliefs together with thus “covers whatever manifestation of such beliefs without distinction”. The Court thence concluded that the dominion “must (…) live on regarded every bit treating all workers of the project inwards the same way, past times requiring them, inwards a full general together with undifferentiated way, inter alia, to clothing neutrally, which precludes the wearing of such signs.”

Having answered the referring Court’s enquiry every bit to whether the dominion inwards enquiry constituted direct discrimination inwards the negative, the Court decided to furnish additional guidance every bit to how the national court, which has the say-so to create upward one's take heed factual matters, should approach the number of indirect discrimination. It did so on the solid set down that it was “not inconceivable”that the referring courtroom powerfulness conclude that the dominion inwards enquiry was indirectly discriminatory inwards that it was “an champaign neutral obligation it encompasses results, inwards fact, inwards persons adhering to a item faith or belief existence set at a item disadvantage” .

The guidance given provides pregnant illumination every bit to the approach of the Court to the reconciliation of religious liberty amongst rules that essay to constrain religious human face inwards item contexts inwards multi-faith societies.

The Court, inwards mutual amongst the European Court of Human Rights inwards Eweida concluded that inwards principle, the desire, on the business office of an employer to projection an ikon of neutrality “must live on considered legitimate”. It bolstered this conclusion amongst reference to the liberty to acquit a concern nether Article 16 of the Charter of Fundamental Rights of the European Union which it feels weighs inwards favour of the employers’ rights inwards this regard “notably” when the dominion covers only workers “who are required to come  into contact amongst the employer’s customers”.

However, the Court stressed that a dominion restricting religious symbols or attire tin only live on seen to live on appropriate when it is business office of a neutrality policy that “is really pursued inwards a consistent together with systematic manner”. Whether this was the instance inwards relation to Ms. Achbita, was, the CJEU ruled for the national courtroom to create upward one's take heed on the facts.

Despite its emphasis on the role of the national courtroom inwards applying the Court of Justice’s guidance to the case, the judgment gave a notably strong steer to the national judges terminal that if it were the instance that the prohibition covered “only G4S workers who interact amongst customers (…) the prohibition must live on considered strictly necessary for the move of achieving the aim pursued” though it did banking concern annotation that the national courtroom must assess wehther it would have got been possible to observe Ms. Achbita a non-customer-facing role.

The judgment inwards honor of Ms. Bouganoui took every bit similar approach. The Court stated that a by together with large applicable ban on all visible symbols of religious, philosophical or political belief would live on indirectly discriminatory together with referred explicitly to the guidance given inwards Achbita for the assessment of the legitimacy, proportionality together with necessity of such a ban.

The Court said it was for the national courtroom to create upward one's take heed if Ms. Bouganoui’s dismissal was based on non-compliance amongst such a full general ban. If the determination to dismiss was non based on a full general ban but was specific to the headscarf, so it would live on necessary to respond the enquiry posed past times the national court, namely, whether compliance amongst a asking from a client that the employee refrain from wearing an Islamic headscarf at piece of work could live on seen every bit a “genuine together with determining occupational requirement” that could justify a straight discriminatory policy.

On this matter, the Court gave a clear answer. It noted that only inwards really limited circumstances tin characteristic related to faith constitute a genuine together with determining occupational requirement. Compliance amongst a client asking such every bit that made inwards this instance did non run across the Directive’s requirement that a discriminatory dominion live on justified “by argue of the nature of the item occupational activities concerned or of the context inwards which they are carried out”.

Significance of Client Preferences

There are a number of interesting features of the Court’s reasoning inwards these cases. There may seem to live on something of a tension betwixt the ii rulings inwards relation to the role of client preferences every bit a solid set down for the restriction of religious human face on the business office of employees. On the 1 hand, inwards Achbita, the Court appears to say that the demand of the employer to introduce a neutral ikon to clients makes it to a greater extent than justifiable to impose a neutrality requirement on employees amongst customer-facing roles. On the other hand, inwards Bouganoui, the Court found that compliance amongst a client’s asking for “no veil side past times side time” could non live on seen every bit a “genuine together with determining occupational requirement”.

However, to reckon a conflict hither is to misunderstand the Court’s reasoning. In its give-and-take of the significance of customer-facing roles inwards Achbita, the Court was focusing on justification of an indirectly discriminatory full general ban on all religious, political together with philosophical symbols together with assessing whether such a full general ban would run across the atmospheric condition of proportionality, legitimacy together with necessity required past times the Directive inwards monastic enjoin to justify such indirectly discriminatory measures.

In contrast, inwards Bouganoui, the Court was assessing justification of a straight discriminatory criterion, namely the client’s asking for “no veil side past times side time”. In other words, the fact that the client inwards Bouganoui made a asking that appeared to target the symbols of a item faith rather than seeking a full general ban on all religious, philosophical together with political symbols, made compliance amongst this asking a affair of direct non indirect discrimination. As the bear witness for justification of straight discriminatory measures (“genuine together with determining occuptational requirement”) is so much to a greater extent than demanding than that for indirectly discriminatory measures, the reasons for the apparent contrast inwards outcomes inwards the ii cases becomes clear. Customer preferences may live on sufficient to justify an indirectly discriminatory mensurate but cannot justify a straight discriminatory one.

The focus on the enquiry of whether an employee has a customer-facing role inwards Achbita is also raises the enquiry of the permissibility of dress-code restrictions for those without customer-facing duties. The Court was clear that interaction amongst customers was a component that increased the range for an employer to require an employee to obey a full general together with systematic ban on symbols of religious, political or philosophical belief. It is unclear whether this way that it is impermissible to impose such constraints on employees without client facing roles. Given the controversial nature of many religious together with other beliefs, it is conceivable that employers volition aim to save workplace harmony betwixt employees past times imposing bans on symbols of belief at work. Indeed, inwards the well-known instance of Ladele, the objection to accommodating a registrar who refused to send out same sexual activity civil partnerships came non from whatever clients but from her boyfriend employees.

Definition of Religion for Purposes of Discrimination

The fact that the Court relied to a pregnant flat on the definition of faith inwards the Article nine jurisprudence of the European Court of Human Rights did non pose problems inwards this case. However, in that location is a for certain tension betwixt the correct to liberty of faith together with belief together with the thought of indirect discrimination on grounds of religion. The correct to liberty of faith or belief has (rightly) been regarded past times the courts every bit primarily an private correct that allows individuals to select their beliefs together with which does non distinguish betwixt widely shared established beliefs together with idiosyncratic or heterodox beliefs together with does non favour religious over non-religious forms of belief.

Indirect discrimination on the other hand, has by together with large involved notions of collective disadvantage together with the granting of extra rights to individuals who demo they are business office of a grouping facing additional “head-winds” on concern human relationship of a salient characteristic shared amongst other members of that identifable group. An private amongst a belief shared past times no 1 else may non live on able to demonstrate such collective disadvantage (see for instance the approach of the English linguistic communication together with Welsh Court of Appeal inwards Eweida to indirect discrimination on grounds of faith inwards Directive 2000/78). Thus, the individualistic approach to faith that is appropriate inwards relation to cases focusing on religious liberty may non ever live on appropriate inwards relation to questions of indirect discrimination on grounds of faith where grouping disadvantage volition live on business office of the analysis. Therefore, the CJEU’s approach of relying on the definition of faith used inwards telephone substitution rights litigation inwards relation to anti-discrimination cases may drive problems inwards the futurity (see R. McCrea “previously on this blog, regulating religion’s role inwards populace life is hard because faith is both a affair of identity (akin to race) together with a affair of belief (akin to political opinion). If 1 views faith every bit a laid upward of beliefs this calls out for handling that is only reverse to the handling that would live on appropriate if faith is regarded every bit a shape of identity. Different approaches are appropriate inwards dissimilar scenarios. In relation to blasphemy or anti-apostacy laws, it is in all likelihood best to reckon faith every bit a laid upward of beliefs, inwards relation to the correct to have services inwards a shop, it is in all likelihood best to reckon it every bit a shape of identity. In relation to the workplace, in that location are proficient reasons for both approaches so it is appropriate that a flat of leeway is allowed, provided that restrictions are applied inwards a fair together with balanced manner.

However, the storey of the judgments inwards Achbita together with Bouganoui is non a storey of uncomplicated deference on the business office of the European Court. While the Court of Justice has upheld the compatibility of rules prohibiting the wearing of religious symbols at piece of work amongst the Directive it has, at the same fourth dimension taken steps to ensure that such rules exercise non teach a way to target adherents to minority or unpopular faiths. Rules restricting religious influence over police line together with politics or limiting religous human face inwards populace contexts that were enacted inwards proficient faith have got sometimes teach the dependent area of exploitation inwards bad faith past times only about amongst exlusionary agendas. The Front National inwards France, for example, has inwards recent years, discovered a fervent dear for laïcité that it did non have got earlier they discovered that it could live on used every bit a stick amongst which to musical rhythm out French Muslims.

I have got written earlier (Religion together with the Public Order of the European Union, chapters vi together with 7, OUP 2010) well-nigh how the legal together with political monastic enjoin of the European Union has tended to percieve to a greater extent than readily threats to secular police line together with politics together with to egalitarian values when they come upward from minority faiths than when they come upward from culturally-entrenched forms of Christianity. This does non hateful that restrictions on faith inwards politics or populace life ought to go, oft they serve of import goals. But it does hateful that it is of import to ensure that such restrictions are applied fairly. The Court of Justice has taken an of import stair inwards these cases inwards this regard. By insisting that bans on religious symbols tin live on justified only if business office of a really systematic together with by together with large 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 oft justifiable want to curtail human face of controversial beliefs inwards the workplace cannot live on used every bit a way to selectively target unpopular minorities.

This is an approach that volition teach out only about unsatisfied. It gives employers pregnant command over the appearance of employees. In addition, what is seen every bit neutral is culturally specific together with so compliance amongst neutral rules volition live on to a greater extent than hard for adherents to minority faiths. However, every bit noted above, such rules tin serve of import goals together with national courts volition all the same live on able to assess inwards each instance whether the functioning of the rules inwards enquiry is proportionate. In whatever event, it is non clear that whatever other choice was opened upward to the Court of Justice. There are proficient arguments for together with against allowing religous symbols at piece of work together with what is fair together with appropriate inwards 1 context may live on unfair an oppressive inwards another. Sweeping away all workplace rules accross 28 Member States that imposed a full general ban on visible expressions of belief together with sentiment would stand upward for a striking flat of certainty for an international courtroom together with would have got risked placing the Union on a constitutional collision course of written report amongst at to the lowest degree 1 major Member State. The solution of recognising the legitimacy of full general bans but requiring that such bans avoid targetting specific faiths seems similar a reasonable one.

Barnard & Peers: chapter 9, chapter 20

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