Ronan McCrea*

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

Nearly two decades after the Framework Directive on discrimination in employment was implemented, the Court of Justice issued its first significant decisions regarding workplace discrimination based on religion. These rulings placed the Court in a politically sensitive area, presenting considerable risk for an international judicial body like the CJEU.

Determining the extent to which diverse societies can restrict individuals from expressing potentially contentious religious identities or beliefs in shared environments like workplaces has always been complex. This challenge has grown in recent years as religion’s place in society intersects with volatile political issues such as migration, evolving gender and sexuality norms, national identity, and even security concerns.

Therefore, the Court of Justice likely approached its decisions with apprehension in two cases involving women who were dismissed from their jobs for refusing to remove their Islamic headscarves at work.

While nuanced, the details of these two cases were meaningfully distinct. In Achbita (Case C-157/15), the plaintiff started working as a receptionist at G4S in February 2003, adhering to an unwritten company rule prohibiting employees from displaying visible symbols of political, philosophical, or religious beliefs. In April 2006, Ms. Achbita informed G4S of her intention to wear an Islamic headscarf at work. She was told this violated the company’s policy mandating neutrality in employee attire regarding philosophical and religious expression. G4S formalized the ban on visible symbols in May 2006, and Ms. Achbita was subsequently terminated in June 2006 for her continued insistence on wearing the headscarf.

In Bougnaoui (Case C-188/15), the plaintiff was advised during a Micropole student recruitment event in October 2007 that wearing an Islamic headscarf might be problematic when interacting with clients. She began working at Micropole in February 2008, initially wearing a bandana and later a headscarf. In May 2009, a Micropole client Ms. Bouganoui had worked with expressed dissatisfaction with her headscarf to her employers, requesting that there be “no veil next time.” Ms. Bouganoui refused to comply with her employers’ request to confirm she would not wear the headscarf in future interactions with this client and was dismissed in June 2009.

Both the Belgian and French Courts of Cassation referred questions regarding the prohibition of religious or belief-based discrimination in employment to the Court of Justice, which, recognizing their significance, assigned both cases to the Grand Chamber.

In Achbita, the Belgian court inquired whether a policy prohibiting a female Muslim employee from wearing a headscarf at work should be considered direct discrimination if the employer bans all workers from displaying any outward symbols of political, philosophical, or religious beliefs. This distinction is crucial because, according to the Directive, directly discriminatory rules can only be justified by a “genuine and determining occupational requirement.” Conversely, indirectly discriminatory rules are acceptable if they serve a legitimate purpose and are implemented proportionally and necessarily.

In Bouganoui, the French court questioned whether a client’s objection to being served by an employee wearing an Islamic headscarf could be interpreted as a “genuine and determining occupational requirement” under the Directive (seemingly presuming the restriction was directly discriminatory).

Consequently, both claims centered on the issue of direct discrimination. However, the Court of Justice chose to provide substantial guidance on justifying bans on religious symbols as indirectly discriminatory actions in addition to ruling on direct discrimination.

The Court highlighted in both cases that while the Directive does not define religion, it references rights outlined in the European Convention of Human Rights, including Article 9’s freedom of thought, conscience, and religion. It also notes the reference to shared constitutional values among Member States, reaffirmed in the EU Charter of Fundamental Rights, which includes a comparable right in Article 10. The Court determined that both these rights encompass the freedom to manifest one’s religious beliefs publicly.

General Bans on Symbols of Opinion and Indirect Discrimination

However, in Ms. Achbita’s case, the Court ruled that the rule preventing her from wearing her headscarf at work did not constitute direct discrimination. The policy referred to visible symbols of political, philosophical, or religious beliefs and thus “covers any manifestation of such beliefs without distinction.” Therefore, the Court 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.”

After determining that the rule in question did not constitute direct discrimination, the Court provided further guidance on how the national court, which has the authority to determine matters of fact, 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 offered provides significant insight into the Court’s approach to reconciling religious freedom with rules that aim to restrict religious expression in specific settings within diverse societies.

The Court, aligning with the European Court of Human Rights in Eweida, found that an employer’s desire to project an image of neutrality “must be considered legitimate,” particularly when the rule only applies to employees “who are required to come into contact with the employer’s customers,” citing Article 16 of the Charter of Fundamental Rights of the EU, which it believes lends weight to the employer’s rights in this context.

However, the Court emphasized that restricting religious symbols or attire is only appropriate if it forms part of a neutrality policy applied “consistently and systematically.” The CJEU determined that it was up to the national court to decide, based on the facts, whether this was the case in Ms. Achbita’s situation.

Despite emphasizing the national court’s role in applying the guidance to the case, the judgment provided a strong steer to the national judges. It concluded that if the prohibition applied “only to G4S workers who interact with customers (…), the prohibition must be considered strictly necessary for the purpose of achieving the aim pursued.” However, the national court must also assess whether it would have been possible to find Ms. Achbita a non-customer-facing role.

The judgment in Ms. Bouganoui’s case followed a similar path. The Court stated that a general ban on all visible religious, philosophical, or political symbols would be indirectly discriminatory, explicitly referencing the guidance provided in Achbita to evaluate the legitimacy, proportionality, and necessity of such a ban.

The Court decided it was for the national court to determine if Ms. Bouganoui’s dismissal resulted from violating such a general ban. If not based on a general ban but specific to the headscarf, the national court would need to address whether complying with a client’s request that the employee refrain from wearing an Islamic headscarf at work could be considered a “genuine and determining occupational requirement” justifying a directly discriminatory policy.

The Court’s response to this question was unambiguous. It observed that characteristics related to religion could only constitute a “genuine and determining occupational requirement” in very specific circumstances. Complying with a client’s request like the one in this case did not meet the Directive’s standard 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

The Court’s reasoning in these cases presents some interesting nuances. There appears to be a tension regarding customer preference as a basis for restricting employees’ religious expression. In Achbita, the Court suggests that an employer’s need to present a neutral image to clients provides a stronger justification for imposing neutrality requirements on employees in customer-facing roles. Conversely, in Bouganoui, the Court found that complying with a client’s request for “no veil next time” did not meet the threshold of a “genuine and determining occupational requirement.”

However, perceiving a conflict here misunderstands the Court’s reasoning. The Court’s discussion in Achbita concerning customer-facing roles centered on justifying a general ban on religious, political, and philosophical symbols that indirectly discriminates and assessing whether such a ban satisfies the Directive’s conditions of proportionality, legitimacy, and necessity.

In contrast, the Court in Bouganoui assessed the justification for a directly discriminatory criterion: the client’s request for “no veil next time.” In other words, the client’s request in Bouganoui, targeting symbols of a particular faith rather than seeking a general ban on all religious, philosophical, and political symbols, made compliance a matter of direct, not indirect, discrimination. Because the justification bar for directly discriminatory measures (“genuine and determining occupational requirement”) is significantly higher than for indirectly discriminatory measures, the seemingly contrasting outcomes in the two cases become clearer. Customer preferences may be enough to justify indirect discrimination but not direct discrimination.

The emphasis in Achbita on whether an employee has a customer-facing role also raises questions about the permissibility of dress code restrictions for those without such duties. The Court clearly stated that interacting with customers is a factor that strengthens an employer’s ability to enforce general and systematic bans on religious, political, or philosophical symbols. However, it remains unclear whether imposing such restrictions on employees without customer-facing roles is impermissible. Considering the potentially controversial nature of many religious and other beliefs, it is conceivable that employers may aim to maintain workplace harmony by implementing bans on belief-related symbols. In the well-known case of Ladele, objections to accommodating a registrar who refused to perform same-sex civil partnerships came not from clients but from fellow employees.

Definition of Religion for Purposes of Discrimination

The Court’s reliance on the definition of religion found in the European Court of Human Rights’ Article 9 jurisprudence did not present any issues in this instance. However, there is an inherent tension between the right to freedom of religion or belief and the concept of indirect discrimination based on religion. Courts have correctly interpreted the right to freedom of religion or belief primarily as an individual right, allowing individuals to choose their beliefs without distinguishing between widely held established beliefs and those that are idiosyncratic or heterodox and without favoring religious beliefs over non-religious ones.

On the other hand, indirect discrimination generally involves the notion of collective disadvantage and granting additional rights to individuals who demonstrate they belong to a group facing extra “headwinds” due to a shared characteristic. An individual whose beliefs are not shared by others may be unable to demonstrate such collective disadvantage (see, for example, the English and Welsh Court of Appeal’s approach to indirect discrimination based on religion in Directive 2000/78 in Eweida). Therefore, the individualistic approach to religion that is appropriate for cases concerning religious freedom may not always be suitable for addressing indirect discrimination based on religion, where group disadvantage is a factor for consideration. Consequently, the CJEU’s reliance on the definition of religion used in fundamental rights litigation for anti-discrimination cases might create challenges 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).

Conclusion

Given the political sensitivity surrounding these cases, the Court of Justice’s cautious approach is unsurprising. Europe lacks consensus on navigating the role of religion in public life amidst religious and demographic shifts. Various countries have experimented with different approaches. Some, like the UK, have opted to permit religious expression in a wide range of public settings. Others, like France, have adopted the opposite approach, promoting a degree of restraint in religious expression outside private spheres to foster social harmony. Each approach has its critics. Many in France find their country’s approach overly restrictive, while many in Britain argue that their country’s approach has not effectively served cohesion and coexistence. Some states, like the Netherlands, have shifted their stance to some extent.

Furthermore, the question of whether religious belief merits “special” status—affording greater protection than other beliefs—has significant implications for fundamental rights (where religious freedom may sometimes come at the expense of others’ rights) and constitutional law, where the concept of religion as a private, individual matter is deeply ingrained in several European states.

Therefore, the Court of Justice’s cautious approach is understandable. As previously discussed on this blog, regulating religion’s role in public life is challenging because religion encompasses both identity (similar to race) and belief (akin to political opinion). Approaching religion as a set of beliefs necessitates a treatment completely different from what would be suitable if religion were regarded as a facet of identity. Different circumstances call for different approaches. Regarding blasphemy or apostasy laws, viewing religion as a set of beliefs is likely best; concerning the right to be served in a shop, it might be more appropriate to consider it as an aspect of identity. In the workplace, there are valid arguments for both approaches, so allowing a degree of flexibility is reasonable, provided restrictions are implemented fairly and impartially.

However, the judgments in Achbita and Bouganoui represent more than simple deference by the European Court. While upholding the compatibility of rules prohibiting religious symbols in the workplace with the Directive, the Court took measures to ensure these rules are not used to target adherents of minority or less popular faiths. Rules enacted in good faith to restrict religion’s influence on law and politics or limit religious expression in public have sometimes been exploited by those with exclusionary agendas. For instance, in recent years, France’s Front National has discovered a fervent, albeit newfound, passion for laïcité, recognizing its potential as a tool to target French Muslims.

As previously discussed (Religion and the Public Order of the European Union, chapters 6 and 7, OUP 2010), the legal and political framework of the European Union has often been more sensitive to threats posed to secular law, politics, and egalitarian values by minority faiths compared to those emanating from culturally entrenched forms of Christianity. This does not necessarily mean that restrictions on religion in politics or public life should be abolished; they frequently serve important purposes. However, it underscores the importance of ensuring that such restrictions are applied equitably. The Court of Justice took a significant step forward in these cases. By insisting that bans on religious symbols are only justifiable if they are part of a genuinely systematic and universal prohibition on displaying all visible symbols of religious, philosophical, or political beliefs, the Court aimed to ensure that the often-justified desire to limit the expression of controversial beliefs in the workplace cannot be used to single out unpopular minorities.

This approach may not satisfy everyone. It grants employers considerable control over employee appearance. Additionally, neutrality is culturally determined, making it potentially more challenging for adherents of minority faiths to comply with neutrality policies. Nonetheless, as mentioned earlier, such rules can serve crucial objectives, and national courts retain the authority to evaluate the proportionality of these rules in each case. Ultimately, it is unclear whether the Court of Justice had any other viable option. Strong arguments exist both for and against allowing religious symbols in the workplace, and what constitutes a fair and appropriate approach can vary depending on the context. Eliminating all workplace rules across 28 Member States that impose general bans on the visible expression of belief and opinion would be a bold move for an international court, potentially setting the Union on a collision course with at least one major Member State. The chosen solution—acknowledging the legitimacy of general bans while requiring them to avoid targeting specific faiths—appears to be a reasonable compromise.

Barnard & Peers: chapter 9, chapter 20

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