Faith at Work: The European Court's Headscarf Ruling
28 March 2017
Ronan McCrea, author of Religion and the Public Order of the European Union, examines the significance of the CJEU's recent decisions in relation to employment discrimination on religious grounds.
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).
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.