Wearing The Veil At Work: Achbita As Well As Bougnaoui - Tin A Duty To Reasonable Accommodation Last Derived From The Eu Concept Of Indirect Discrimination?
November 25, 2018
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The Islamic headscarf number has lastly reached the Court of Justice of the European Union (CJEU) through 2 preliminary references, Achbita and Bougnaoui, issued past times Belgian in addition to French courts, respectively. While the CJEU has –directly or indirectly– dealt amongst religious liberty issues earlier inwards the context of the internal marketplace (see eg Van Duyn v Home Office) or the correct to asylum (see Bundesrepublik Federal Republic of Federal Republic of Germany v Y in addition to Z), this is the outset fourth dimension that the CJEU has ever been asked virtually religious discrimination nether Directive 2000/78 (the 'employment equality' Directive), although the latter prohibits religious discrimination inwards work inside the European Union since 2000. In addition, these are the outset 2 cases where the CJEU is confronted amongst the number of whether restricting the purpose of the Islamic headscarf at function tin sum to religious discrimination. In contrast, several national jurisdictions* in addition to the European Court of Human Rights (ECtHR) (see eg Ebrahimian v France) receive got already dealt amongst this matter.
This thence is an first-class chance for the CJEU to seat itself equally regards the ECtHR’s instance police on religious clothing in addition to to clarify how the work equality Directive should live interpreted inwards religious discrimination instances. Indeed, both cases receive got been assigned to the Grand Chamber, which signposts their potential importance, in addition to the hearings are scheduled for today.
Background of the disputes
These 2 cases receive got some mutual features: the applicants are Muslims working for individual companies; they both used to wearable the hijab (ie the Islamic veil that covers the caput in addition to the chest, but not the face) at work; and, inwards both cases, their employer considered that this was inwards conflict amongst the respective organisations’ neutrality policy, in addition to so afterward refusing to take the hijab at work, the applicants were dismissed. Bougnaoui in addition to Achbita should thence live distinguished from the ECtHR instance SAS v France (see a commentary here), which concerned the French ban to wearable the burqa in addition to the niqab (ie the Islamic veils that encompass the total body, including the face) inwards public spaces (and non inside a private company, equally it was the instance inwards Bougnaoui in addition to Achbita).
On the other hand, however, in that location are besides some differences betwixt these 2 cases. Firstly, Bougnaoui was wearing the headscarf from the outset, that is, from the really outset hateful solar daytime she was working for the employer (Micropole Univers). In contrast, Achbita entirely decided to commence wearing it during working hours afterward beingness inwards work for 3 years amongst the companionship ‘G4S Secure Solutions’ (she nevertheless ever wore it exterior work). Secondly, Bougnaoui worked equally an engineer who spent some of her working fourth dimension at Micropole Univers’ premises, in addition to another fourth dimension working at clients’ premises. The company’s seat was that she should non wearable the hijab when she had to live inwards contact amongst clients (either at the company’s ain premises or at the clients’ offices), but she was allowed to wearable the hijab the balance of the time. Conversely, Achbita, who worked equally a receptionist, was non allowed to wearable the headscarf at all. Finally, spell inwards Bougnaoui in that location was an limited electrical charge of a client who was ‘inconvenienced’ past times the hijab in addition to requested that she did non wearable it the adjacent time, according to the data publicly available, inwards the Achbita instance in that location was non an explicit client complaint.
The questions asked past times the referring courts are besides different. In Achbita, the Belgian courtroom asks whether the employer’s neutrality dominion amounts to direct discrimination, spell inwards Bougnaoui, the French courtroom asks whether the neutrality requirement tin sum to an occupational requirement (art 4(1), employment equality Directive) if it is a client’s demand. In my view, however, the primal number at stake inwards both claims is whether an employer’s duty to adjust religious practices tin live derived from the European Union concept of indirect discrimination (art 2(2)(b), employment equality Directive).
The questions asked past times the national courts
Direct or indirect discrimination?
Neutrality rules are usually classical examples of the type of policies that tin sum to indirect discrimination. Typically, they are non introduced because some employees profess a given faith, but rather to save the organisation’s ikon or the regulation of secularism. So they usually are neutral on their aspect in addition to they apply to everyone, but in practice they tin set at disadvantage for certain groups, eg people who experience compelled to limited their religious believes through for certain religious practices or dresses. Indeed, inwards this case, both claimants were arguably set at disadvantage past times the neutrality policies, in addition to and so would receive got been anyone trying to wearable a religious symbol or clothing inwards their respective workplaces. It thence seems relatively straightforward that these neutrality policies tin sum to indirect discrimination.
However, in that location may live instances where a detail policy or exercise tin sum to either direct or indirect discrimination depending on the specific factual circumstances surrounding the case. As the CJEU has late noted, the key chemical cistron to differentiate betwixt direct in addition to indirect discrimination is that: ‘[i]f it is apparent that a mensurate which gives ascension to a departure inwards handling has been introduced for reasons relating to [the protected characteristic], that mensurate must live classified equally ‘direct discrimination’ inside the pregnant of [EU law]. By contrast, indirect discrimination […] does non require the mensurate at number to live based on reasons of that type. […] It is sufficient that, although using neutral criteria non based on the protected characteristic, it has the effect of placing especially persons possessing that characteristic at a disadvantage’ (CHEZ Razpredelenie Republic of Bulgaria AD, paras 95-96).
The data publicly available on the Achbita instance suggests that the company’s neutrality policy existed earlier she started wearing the headscarf at work. However, it seems that afterward the conflict amongst the claimant arose, in addition to ‘[f]aced amongst the persistence of the employee to wearable the headscarf during working hours, the company’s board of directors decided to ameliorate function regulations inwards social club to forestall the workers to wearable whatever visible symbol expressing their political, philosophical or religious beliefs’.** This suggests that in that location mightiness live a causal link betwixt the employer’s determination to ban wearing visible religious symbols in addition to Achbita’s determination to commence wearing the hijab at work. While this is a affair of proof to live considered past times the national court, if in that location is plenty prove to propose that this prohibition was introduced because of the religious conflict that arose betwixt Achbita in addition to the company, it could arguably sum to direct discrimination.
Can a client’s ‘neutrality requirement’ sum to an occupational requirement?
Whether the policies at stake inwards these 2 cases sum to direct or indirect discrimination, at the justification stage, the employers could essay to rely on article 4(1) of the employment equality Directive to struggle that non wearing the headscarf at function is an occupational requirement, inwards other words, that it is truly necessary ‘by ground of the nature’ of the project ‘or the context inwards which [it is] carried out’, in addition to that requiring this is legitimate in addition to proportionate. However, it seems that this declaration was entirely set forrard inwards Bougnaoui.
The fact that inwards that instance a client requested that inwards the time to come the claimant did non wearable the hijab resonates amongst the Firma Feryn case, where a Belgian companionship manager publicly stated that he was non willing to hire Moroccans because he had to comply amongst its ‘customers requirements’, who did non desire domestic warning systems beingness installed past times ‘immigrants’ (AG Poiares Maduro’ Opinion inwards Firma Feryn, para 4). In that case, AG Poiares Maduro concluded that non hiring Moroccans for that ground amounted to direct discrimination –which was confirmed past times the Court– in addition to he noted that the fact that customers were ‘unfavourably disposed towards employees of a for certain ethnic origin’ exactly ‘illustrate[d] that “markets volition non cure discrimination” in addition to that regulatory intervention is essential’ (paras 18-19 of the opinion).
In Bougnaoui, non wearing a headscarf was non genuinely necessary in addition to determining to successfully perform the substance of the applicant’s project equally an engineer. Furthermore, the occupational requirement exception is entirely applicable to ‘very limited situations’ (recital 23, work equality Directive) in addition to exceptions to the regulation of equal handling should live interpreted strictly (Prigge v Lufthansa, paras 56, 71). Therefore, the client’s asking that Bougnaoui should non wearable the headscarf should non live interpreted equally an acceptable occupational requirement, as defined inwards article 4(1) of the work equality Directive. Although the employer could besides essay to rely on article 2(5) of the Directive to justify this policy contestation that it was necessary to protect the rights in addition to freedoms of others, the mere fact that the client did non like watching the applicant wearing the headscarf does non look a legitimate ground to claim that tertiary parties’ ‘rights in addition to freedoms’ were affected.
The key underlying issue: tin a duty to adjust religious practices live derived from the European Union concept of indirect discrimination?
Under European Union law, the employer has a duty to reasonably adjust disabled persons (art 5, work equality Directive), in addition to to some extent pregnant women (Directive 92/85/EEC, fine art 5(1)). While European Union police does non formally recognise this duty for whatever other ground, some academics struggle that it could live derived from the concept of indirect discrimination,*** equally it has been the instance inwards Canada (Ontario Human Rights Commission (O’Malley) v Simpsons-Sears [1985] 2 SCR 536). This could live especially suitable for cases where religious practices clash amongst the protection of a legitimate objective or amongst the protection of the rights in addition to freedoms of others.
Indeed, spell the ECtHR has non explicitly recognised a duty of reasonable accommodation for religious believes, inwards Thlimmenos it stated that:
The correct non to live discriminated against inwards the enjoyment of the rights guaranteed nether the Convention is besides violated when U.S.A. without an objective in addition to reasonable justification neglect to process differently persons whose situations are significantly different. (Thlimmenos v Greece, para 44)
This effectively agency that states should adjust persons who receive got dissimilar needs unless in that location is an ‘objective in addition to reasonable justification’ non produce it. In other words, the ECtHR suggests that the ‘reasonableness’ of accommodation should live analysed equally part of the objective justification essay which is inherent to indirect discrimination in addition to entails considering whether the failure to process the claimant differently pursues a legitimate aim in addition to is proportionate.
The ECtHR has been reluctant to apply this regulation inwards religious discrimination cases inwards the pedagogy sector (see eg Dahlab v Swistzeland; Sahin v Turkey; Dogru v France) in addition to inwards the populace sector (see eg X v UK, Kosteski v Former Yugoslavia Republic of Macedonia, Ebrahimian v France). However, when the ‘accommodation conflict’ arises exterior an educational surroundings in addition to betwixt individual parties (ie when in that location is no demand to save state’s neutrality), the ECtHR seems to set a lower threshold to discovery that the dominion at stake is non justified, in addition to thus, the religious exercise should live accommodated. That was the instance inwards Eweida v UK , where –like inwards Bougnaoui in addition to Achbita– the religious accommodation conflict arose inside a individual company.
Within the EU, the CJEU has outlined the regulation of equal handling equally requiring non entirely that identical situations are treated inwards the same manner, but besides that dissimilar situations are treated differently (see eg Joint Cases T-18/89 in addition to 24/89, Tagaras; Case T-10/93, A v Commission), which echoes the ‘reasonable in addition to objective justification’ requirement recognised past times the ECtHR inwards Thlimmenos. Accordingly, the same reasoning could live followed past times the CJEU inwards a instance concerning a religious accommodation conflict. In fact, inwards Prais the CJEU already accepted that the accommodation of religious believes was ‘desirable’, although non required on the facts. Prais was a Jewish applicant to an European Union civil service competition. She asked for the appointment to live changed because it coincided amongst a Jewish vacation that forbids travelling in addition to writing. When her asking was rejected, she argued that it amounted to a violation of the Staff Regulations, which established that candidates should live selected without distinction on grounds of religion. The Court recognised that the appointing ascendance ‘should […] endeavor to avoid such [religious] dates’, but because she had non informed the Council earlier fixing the date, the Council was non obliged to adjust Prais’ believes (paras 16-18).
Against this framework, in addition to given the parallel betwixt the ECtHR in addition to the CJEU’s definitions of equal treatment, it could live expected that inwards Bougnaoui in addition to Achbita the latter volition follow the approach of the ECtHR inwards Thlimmenos and Eweida to recognise –at to the lowest degree tacitly– that a duty to reasonably adjust religious differences tin live derived from the concept of indirect discrimination. It volition live interesting to run across whether the Grand Chamber takes this road or it follows a dissimilar approach to address this issue.
Photo credit: Mizrahilaw.com
Barnard & Peers: chapter 9, chapter 20
* See eg the Danish instance Føtex, 22/2004 No.U.2005.1265.H (Supreme Court, 21 Jan 2005); the Great Britain instance Azmi v Kirklees MBC [2007] ICR 1154 (EAT); the Belgian instance Hema (Tongres Labour Court, 2 Jan 2013) in addition to the French instance Association Baby Lou, determination No S 13/02981 (Court of Appeal of Paris, 27 Oct 2013).
** E Bribosia, ‘The preservation of the neutral ikon of a individual companionship may justify the dismissal of employees wearing the headscarf’, European network of legal experts inwards the non-discrimination acre (11 Jan 2012), citing the Judgment inwards instance G4S, A.R. 2010/AA/453 en 2010/AA/467 (Antwerp Labour Court of Appeal, 23 Dec 2011).
*** L Waddington, ‘Reasonable Accommodation’ (2011) 36 NTM/NJCM-Bulletin 41, 49; K Alidadi, ‘Reasonable accommodation for organized faith in addition to belief: adding value to art. ix ECHR in addition to the EU’s anti-discrimination approach inwards employment?’ (2012) 37 ELRev 693, 707-710; S Benedi Lahuerta, ‘Taking European Union Equality Law to the Next Level: inwards Search of Coherence’ (2016) European Labour Law Journal (forthcoming).
