Religious Discrimination Inwards The Workplace: Which Approach Should The Cjeu Follow?

Ronan McCrea*

* Senior Lecturer at the Faculty of Laws at UCL too the writer of Religion too the Public Order of the EU (OUP 2010) too Religion et l’Ordre juridique de l’Union Europeenne (Bruylant 2013).

After many years inward which religious issues barely figured inward Grand Duchy of Luxembourg illustration constabulary nosotros conduct maintain had inward recent weeks 2 opinions from Advocates General of the Court of Justice of the EU on the inquiry of religious aspect at work.

Interestingly, AG Kokott (in her thought inward Achbita) too AG Sharpston (in her thought inward Bougnaoui) conduct maintain come upwards to what appears to survive conflicting conclusions on the compatibility of rules restricting the wearing of religious symbols at move (in both cases Islamic headscarves) amongst the prohibition of direct too indirect discrimination inward usage inward Directive 2000/78 – the the framework equality directive, which bans discrimination inward the workplace on grounds of age, religion, sexual orientation too disability. (On the background to the 2 cases, come across besides the earlier analysis of Sara Benedi Laheurta).

Both Advocates General concluded that, where a ban on religious symbols at move is found to survive indirectly discriminatory, a balancing practise must survive carried out. However, they were inward disagreement every bit to whether such a ban could survive found to constitute direct discrimination.

The reasoning through which they came to these conflicting conclusions highlights the cardinal dilemma that makes cases relating to organized faith inward the workplace so difficult.

The cardinal departure betwixt the 2 Advocates General lies inward how they characterize religion. In her thought AG Kokott, characterized organized faith every bit a thing of belief too ideology thereby distinguishing it from other protected characteristics such every bit gender or race. She noted that the ban inward inquiry covered all religious too political signs too that:

“That requirement of neutrality affects a religious employee inward precisely the same means that it affects a confirmed atheist who expresses his anti-religious stance inward a clearly visible mode past times the means he dresses, or a politically active employee who professes his allegiance to his preferred political political party or item policies through the clothes that he wears (such every bit symbols, pins or slogans on his shirt, T-shirt or headwear).” (para 52)

Thus a distinction could survive made between:

“immutable physical features or personal characteristics — such every bit gender, (26) historic menses or sexual orientation — rather than amongst modes of send based on a subjective determination or conviction, such every bit the wearing or non of a caput roofing at upshot here.” (para 45)

AG Sharpston on the other hand, found that direct discrimination had taken house stating that an employee “who had non chosen to manifest his or her religious belief past times wearing item wearing apparel would non conduct maintain been dismissed. Ms Bougnaoui’s dismissal hence amounted to direct discrimination.” (para 88)

She characterized organized faith every bit a cast of identity, akin to race or gender, stating that:

“to someone who is an observant fellow member of a faith, religious identity is an integral part of that person’s rattling being. The requirements of one’s faith – its dependent area too the rules that it lays downward for conducting one’s life – are non elements that are to survive applied when exterior move (say, inward the evenings too during weekends for those who are inward an part job) but that tin politely survive discarded during working hours. Of course, depending on the item rules of the organized faith inward inquiry too the item individual’s marking of observance, this or that chemical constituent may survive non-compulsory for that private too hence negotiable. But it would survive exclusively incorrect to suppose that, whereas one’s sexual activity too peel colouring stuff accompany 1 everywhere, somehow one’s organized faith does not.” (para 118)

As amongst many debates inward relation to constabulary too religion, 1 has the slight impression that 2 Advocates General are talking at cross-purposes. The problems that arise inward regulating religious aspect at move is that organized faith is both a laid of ideological beliefs too a cast of identity.

This makes things peculiarly difficult. If 1 views organized faith every bit a laid of beliefs, this oft calls out for handling which is exclusively reverse to the handling that would survive appropriate if organized faith were regarded every bit a cast of belief.

If 1 views organized faith every bit immutable identity too so refusing to permit someone to apparel a headscarf or crucifix when dealing amongst Blue Planet is akin to refusing to permit a worker amongst dark-brown peel from serving customers. On the other hand, if 1 views organized faith every bit a cast of ideology too belief, too so refusing to permit a worker wearing a religious symbol from serving customers is no less justifiable than refusing permission to a worker to apparel a Labour Party/Les Republicains/British National Party/Jobbik/ badge piece at work.

Often, at that topographic point just is no means to process organized faith that does jurist to its belief too identity elements at the same time.

The cardinal legal upshot is whether the determination of an employer to determine to process organized faith every bit a cast of belief rather than identity was right (in Strasbourg cases the upshot volition survive whether the choice of the terra firma to characterize organized faith inward a item means was reasonable). (See R McCrea, "Secularism before the Strasbourg Court: Abstract Constitutional Principles every bit a Basis for Limiting Rights" 79 (4) Modern Law Review 691-705.)

Therefore, AG Sharpston’s declaration that organized faith is a cast of identity akin to race is neither hither nor there.  It is clear that organized faith is both identity too belief.  What is needed are criteria to move out when it is right to process organized faith every bit belief too when it is right to process it every bit identity.

The 2 Advocates General conduct maintain provided eloquent arguments inward favour of seeing organized faith inward the workplace every bit a cast of identity too cast of belief respectively. Both approaches are appropriate at times. In relation to blasphemy laws, it is in all likelihood best to come across organized faith every bit a cast of ideology. In relation tot the right to have services inward a shop, it is in all likelihood best to come across it every bit a cast of identity.  The province of affairs of employees is to a greater extent than complicated. Hopefully the Court of Justice’s coming rulings volition furnish criteria that volition survive helpful inward establishing why either approach is to survive favoured over the other inward the context of employees at work. Given the controversial nature of this issue, it may good survive tempted to follow the approach of its Strasbourg counterpart too determine that it is reasonable for Member States to select either approach.

Barnard & Peers: chapter 20

Photo credit: Mizrahilaw.com

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