Religious Belief V. Neutrality: Lifting the veil on EU law’s outlook

Introduction

In March 2017, the Court of Justice of the European Union (“CJ” or “Court”) handed down two judgments of high legal and symbolic value in the cases of Samira Achbita and Asma Bougnaoui¹. This was the first time that the Court ruled on the possibility of restricting the use of religious symbols in the workplace. In particular, the question was whether an employer may bar the use of an Islamic headscarf by a female worker of Muslim faith.

The significance of this topic goes far beyond the legal framing of the two decisions, and international echoes – both supportive and critical – were felt worldwide. However, it seems that sometimes the urge to comment on these decisions overlooked their real meaning and scope. Thus, a legal commentary on the judgments in question requires a strict delineation of the relevant facts and legal framework on which the CJ’s judgment relied upon, for only then can one draw the appropriate conclusions.

The facts

Both judgments refer to the dismissal of women workers on account of wearing Islamic headscarves in private workplaces and in jobs involving contact with clients. Islamic scarves – also called hijab – only cover the head, contrary to the burka (which cover the whole face).

In the first case mentioned above, Samira Achbita worked as a receptionist between 2003 and 2006 at the Belgian company G4S, which provides reception and host services for customers. Throughout this period there was a rule at the company (initially unwritten and subsequently enshrined in an internal regulation) according to which workers could not wear visible signs of their political, philosophical or religious beliefs in the workplace nor practice any ritual of such beliefs. In 2006 Samira Achbita started wearing the Islamic headscarf at work and was dismissed for breaching the neutrality rule in force.

In the second case, Asma Bougnaoui already used the Islamic headscarf when, in 2008, she was hired by the French computer company Micropole as a project engineer. Although it appears from the file that the company respected the expression of religious beliefs by its workers in the workplace – and thus apparently there was no general rule of neutrality in respect of political, philosophical and religious beliefs – the company had informed Asma Bougnaoui that she would not be able to wear the veil if this would run counter the expressed will of a client with whom she would come in contact. This was precisely what happened: as a result of complaints from a particular client (based on an alleged discomfort with the situation) Asma Bougnaoui was asked to cease wearing the Islamic headscarf; having refused, she was dismissed one year after taking office.

Legal framework

The two proceedings at issue were referred by the national courts dealing with the cases: the Belgian Court of Cassa-tion in the case of Achbita and the French Court of Cassation in Bougnaoui.

This means that, due to the legal nature of such cases (referrals for a preliminary ruling), the CJ is limited in its powers. The Court can only rule on the interpretation (or validity, which in this case was not raised) of European Union (EU or “Union”) law, and not on the interpretation of national law or on questions of fact discussed in the main proceedings. On the other hand – and this aspect is particularly relevant in relation to the two judgments concerned – in a reference for a preliminary ruling the CJ does not apply EU law to the dispute at stake and does not decide the latter. The Court seeks to provide a useful answer to the solution of the national claims, but it is for the referring court to draw the concrete consequences of the guidelines received and ultimately settle the case.

Having said that (and this precision was not always adequately weighed in the public comments made to the two judgments), it does not seem that these decisions address specifically the essence and scope of the fundamental right to religious freedom – which the Court clearly recognises within the framework of EU law, the European Convention on Human Rights and the constitutional traditions common to the Member States – but rather balances the way in which it is expressed in workplaces, and in private workplaces and companies that assumed (sometimes wrongly, as we shall see) a policy of neutrality vis-à-vis religious, political and philosophical symbols even before admitting the two workers in question.

Hence, in our view, these judgments concern more labour issues than religious rights, and this also follows from the questions referred for a preliminary ruling by the national courts, which raised doubts of interpretation regarding provisions of Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation. In particular, the Belgian court sought to ascertain whether the prohibition on wearing, as a female Muslim, a headscarf at the workplace constitutes a form of “direct discrimination”² where the employer’s rule bans all employees from wearing outward signs of political, philosophical and religious beliefs at the workplace. In its turn, the French court questioned the CJ on whether the wish of a customer, no longer to have information technology services provided by an employee wearing an Islamic headscarf, can be regarded as a “genuine and determining occupational requirement” by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out³.

Court’s ruling

Taking the particular questions posed and referred to the CJ into the equation – and therefore the subject-matter of the Court’s assessment – we can hardly see how the Court’s answer could have been different from the one given to the national courts. It should be noted that the CJ even adopted a solemn and extensive formation to rule on the cases, deciding them through the Grand Chamber, typically reserved for causes of great complexity or importance.

In a nutshell, the Court’s position was as follows:
(i) Achbita judgment: an internal rule of a company which prohibits the visible wearing of any political, philosophical or religious sign does not constitute direct discrimination against workers using the Islamic headscarf;
(ii) Bougnaoui judgment: in the absence of such a general and abstract rule, the willingness of an employer to take account of the wishes of a client no longer to have the company’s services provided by a worker wearing an Islamic headscarf cannot be deemed as an occupational requirement capable of ruling out discrimination.

Comment

The Court’s outcome in Bougnaoui does not appear to offer any doubts. In fact, it is only in very limited circumstances that a characteristic related to religion may constitute an essential and determining professional requirement. As the CJ pointed out, that concept refers to a requirement that is objectively dictated by the nature or the context governing the pursuit of a professional activity and does cover subjective considerations, such as the willingness of the employer to take account of the particular wishes of a customer.

However, the approach followed in Achbita was severely criticized by those who believe it legitimates religious discrimination. Our opinion is that the answer given by the CJ seems to be correct and balanced overall, but the Court has made some obiter dicta on the legal treatment of the facts at stake that are not exempt from criticism.

In particular, while one can accept that an undifferentiated policy of political, philosophical and religious neutrality does not establish a difference of treatment “directly” based on religion (and there is why we understand that the answer to the question referred by the French court could not be otherwise), we believe the Court’s assessment should have gone further in discussing the event that such a policy might result in “indirect” discrimination based on religion, which could occur if it was established – something that is up for the national court to ascertain – that the apparently neutral obligation it encompasses results, in fact, in persons adhering to a specific religion or belief being put at a particular disadvantage. Under Directive 2000/78, such indirect discrimination is only admissible if it is objectively justified by a “legitimate aim” and if the means to achieve that aim are “appropriate” and “necessary”.

The rationale of the Court in this respect rests first and foremost on the idea that an employer’s willingness to project an image of neutrality towards its customers is legitimate since it follows from the freedom to conduct a business as recognised by the Charter of Fundamental Rights of the EU. However, our understanding is that the Court ought to have expanded its views over this concept, since in Bougnaoui the CJ refused the possibility that customers’ wishes may restrict the right of workers to express their religious beliefs.

Secondly, the Court held that the prohibition to display signs of political, philosophical or religious beliefs is capable of ensuring the proper application of a policy of neutrality, provided that that policy is genuinely pursued in a consistent and systematic manner. It goes without saying that this requirement must be verified by the national court, but this aspect seems sufficiently relevant to have deserved a deeper analysis by the Court. In fact, ensuring compliance with such demand is an exercise of greatest difficulty and slenderness in a company’s daily life. For instance, is the use of a wedding ring or in general of any jewel with religious symbolism incompatible with a consistent policy of total neutrality? And what about a garment parading against certain political regimes (e.g., dictatorships, anarchies, etc.)?

Lastly, the Court stated that the neutrality rule will be strictly necessary to achieve the aim pursued so long as it covers only employees who interact with customers. In this respect, the CJ also took the view that, in the light of the constraints inherent to the company and without G4S being required to take on an additional burden, the national court should examine if it would have been possible for the company to offer Samira Achbita a post not involving visual contact with those customers, rather than dismissing her. This is another topic where the Court should have undertaken a broader and more robust examination.

Indeed, it does not seem that the suggestion to “transfer” workers who manifest their religious faith to backoffice positions is desirable as a generic measure, whereas the focus, even from the perspective of an employer, should instead be targeted to the provision of a good service to customers. In this context, the Court could, for example, affirm the need for the national courts to examine the extent to which a neutrality policy is really essential for an undertaking to protect its corporate image vis-à-vis its customers and how may such image be damaged in the absence of that policy. On the other hand, the indication of the CJ can easily be misunderstood by companies and lead to discriminatory practices in the hiring of certain workers for high profile jobs.

National courts will have the final say on the outline of these balances in the individual cases brought before them. In the disputes giving rise to the two judgments of the Court a later appeal to the European Court of Human Rights should not be ruled out, and the Strasbourg court has already shown a stiffer view of the balance between religious freedom and corporate image⁴.

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