Professor Ronan McCrea, University College London
The Court of Justice’s initial significant decisions concerning workplace policies limiting religious symbols were issued four years ago in the G4S and Micropole cases. These rulings addressed the compatibility of these policies with the Framework Directive on discrimination in employment (Directive 2000/78).
In these decisions, the Court’s Grand Chamber determined that requiring employees to maintain visible religious neutrality constituted indirect rather than direct discrimination, provided this policy was uniformly applied to all religions or beliefs. Conversely, policies specifically targeting symbols of a particular faith were deemed directly discriminatory.
The Court asserted that an obligation of visible neutrality, if adequately defined, could meet the criteria for indirectly discriminatory measures (legitimate aim pursued through proportionate and necessary means) but was unlikely to satisfy the criteria for directly discriminatory measures (genuine and determining occupational requirement).
This judgment faced criticism from both the media and legal experts. Eleanor Spaventa expressed concerns that invoking Article 16 of the Charter of Fundamental Rights (right to conduct business) as support for restrictions on employee attire might hinder Member States from adopting approaches that better safeguard religious freedom. She also contended that the Court insufficiently acknowledged the potentially disparate impact of neutrality rules on individuals of specific ethnic backgrounds or genders. Similarly, Joseph Weiler criticized the Court for, among other things, not adequately justifying neutrality as a sufficiently important objective to satisfy the proportionality test’s third element.
When similar issues resurfaced before the Court this year in two German Article 267 references, the Grand Chamber was assigned to the cases. This, however, did not signify a shift in the Court’s approach. The recent ruling in these consolidated cases primarily upholds the Court’s prior approach, but introduces some additional elements that partially address certain criticisms.
Both cases involved employees facing disciplinary action for wearing hijabs at work. In IX v WABR eV (‘IX’), WABE, a non-denominational childcare provider, disciplined an employee in a special needs carer role for violating its internal rule. This rule mandated that employees interacting with parents and children maintain strict neutrality in politics, religion, and philosophy “to guarantee the children’s individual and free development with regard to religion, belief and politics." This rule did not pertain to employees without direct contact with parents and children.
In MH Müller Handels GmbH v MJ (‘MJ’), a woman employed as a cashier and sales assistant faced disciplinary action for wearing a hijab at work, violating a workplace rule prohibiting “conspicuous, large-sized signs of any political, philosophical or religious beliefs.”
The national courts’ submitted questions in each case overlapped somewhat. In IX, the Arbeitsgericht Hamburg posed the following questions to the Court of Justice:
(a) Whether directing an employee who wears a headscarf due to her Muslim faith not to display visible religious or belief symbols constitutes direct or indirect discrimination “on grounds of religion and/or gender." (The English version of the judgment perplexingly refers to discrimination “on grounds of gender." The French version uses “fondée sur le sexe," while the relevant Directive (Directive 2006/54) refers to “less favourable treatment on grounds of sex." However, the Court declined to address discrimination based on this ground because the referring court limited its question to Directive 2000/78, which does not cover this matter).
(b) Whether indirect discrimination based on religion and/or gender can be justified if the employer aims to enforce a neutrality requirement to satisfy “the subjective wishes of its customers,"
and
(c) Whether Directive 2000/78 and Article 16 of the Charter preclude national regulations offering greater protection to religious freedom or belief (considering Article 8(1) of the Directive, which permits Member States to implement provisions exceeding the Directive’s equal treatment standards).
In addition to whether national rules providing greater religious equality are permissible (question (c) above), the Bundesarbeitsgericht in MJ also inquired about:
(d) Whether a rule promoting neutrality by prohibiting only prominent, large-sized symbols of religion or belief (as opposed to all such symbols) fulfills the directive’s requirements for justifying indirect discrimination.
Regarding question (a), the CJEU reiterated its prior ruling that prohibiting religious or belief-based discrimination applies equally to religious and non-religious philosophical and spiritual beliefs. The Court reasoned that “since every person may have a religion or belief," a rule encompassing any manifestation of religion or belief without distinction “treats all workers of the undertaking in the same way by requiring them, in a general and undifferentiated way, inter alia, to dress neutrally." Therefore, such a rule does not constitute direct discrimination, even if it might “particularly inconvenience" workers “who observe religious precepts requiring certain clothing to be worn." In IX, the Court observed that an employee wearing a cross had been asked to remove it, seemingly confirming the rule’s consistent application (although verifying this was deemed a factual matter for the national court).
Concluding that the rule in IX could potentially be indirectly discriminatory, the Court reaffirmed its G4S Solutions finding that indirect discrimination might be justifiable under Article 16 of the Charter “in particular where the employer involves in its pursuit of [the neutrality] aim, only those workers who are required to come into contact with the employer’s customers." However, it subtly elaborated on the G4S ruling, stating that an employer’s “mere desire to pursue neutrality" would be insufficient. Instead, the Court maintained that an employer must demonstrate a “genuine need" for such a policy, “taking into consideration, inter alia, the legitimate wishes off those customers or users and the adverse consequences that the employer would suffer in the absence of that policy." In MJ, the Court further clarified that “the prevention of social conflicts," in addition to customer preferences, could also justify this demonstrated need.
Interestingly, concerning question (d) in MJ, the Court reached a slightly different conclusion regarding the prohibition of conspicuous, large-sized symbols. The Court pointed out that this rule “is liable to have a greater effect on people with religious, philosophical or non-denominational beliefs which require the wearing of a large-sized sign such as a head covering." Observing that a rule based on a criterion “inextricably linked to a protected ground" must be considered directly discriminatory, the Court then states that “where the criterion of wearing conspicuous, large-sized signs of political, philosophical or religious belief is inextricably linked to one or more specific religions or beliefs, the prohibition will mean that some workers will be treated less favourably than others on grounds of their religion or belief, and that direct discrimination, within the meaning of [the Directive] may therefore be established."
This appears somewhat contradictory. The Court had already determined in its conclusion that the rule in IX, statistically applicable almost exclusively to Muslim women, was indirectly discriminatory. Yet, in MJ, it seems to suggest that because a ban on large-sized symbols might disproportionately affect those whose beliefs necessitate head coverings, it might be “inextricably linked to a protected ground" and, therefore, potentially constitute direct discrimination.
Perhaps the Court implies that prohibiting conspicuous, large symbols is a concealed way to target symbols of a particular faith and amounts to direct discrimination. This interpretation aligns with its previous rulings in G4S and Micropole, where an instruction focusing on symbols of a specific faith (“no headscarf next time") increased the likelihood of a restriction being deemed directly discriminatory. Regrettably, the convoluted phrasing is likely to create confusion in future cases.
The ruling on whether national provisions offering greater protection to religious or belief equality or freedom are permissible (question (c)), posed by both referring courts, was unambiguous. The Court asserted that the Framework Directive itself “did not itself effect the necessary reconciliation between freedom of thought, conscience and religion and the legitimate aims that may be invoked to justify unequal treatment (…) but left it to the Member States and their courts to achieve that reconciliation." The Directive provides Member States with “margin of discretion (…) taking into account the place accorded to religion and belief within their respective systems." While this discretion “goes hand in hand with supervision by the EU judicature," the Court acknowledged the lack of consensus on these issues among Member States. Accordingly, “national provisions protecting freedom of thought, belief and religion, as a value to which modern democratic societies have attached great importance for many years, may be taken into account as provisions more favourable to the protection of the principle of equal treatment within the meaning of Article 8(1) of the Directive."
This ruling largely echoes the G4S and Micropole decisions. Despite some ambiguity, it suggests that neutrality requirements, consistently and genuinely applied to all religions and beliefs, are generally considered indirect rather than direct discrimination. Customer preferences and the need to prevent social conflicts can justify any indirect discrimination resulting from such neutrality policies.
Disappointingly, the Court chose not to address sex/gender discrimination based on the narrow, technical grounds that the referring court had only cited Directive 2000/78, which does not cover this issue. Given that the national court had raised sex/gender discrimination, the CJEU could have provided guidance on interpreting the relevant legislation in this domain.
The Court does appear to have attempted to address some criticisms of its prior rulings. This ruling emphasizes the need for employers to demonstrate the necessity of a neutrality policy. Furthermore, the conclusion, though confusingly phrased, that bans selectively targeting large symbols could constitute direct discrimination seems to be a step towards more stringent control over bans that conceal the targeting of a particular faith.
The Court also addressed the concern that invoking Article 16 as justification for neutrality policies prevented Member States from implementing more protective measures.
Indeed, this underscores the Court’s cautious approach in this area, which seems justifiable. Unanimous consent from all Member States is required to amend the Framework Directive. The likelihood of a political remedy is very low if the Court were to misinterpret the Directive.
As previously stated, Europe is undergoing unprecedented religious changes. Christianity, dominant in most Member States for centuries, is declining rapidly. Simultaneously, non-belief and Europe’s Muslim population are growing rapidly. Each of these changes alone would lead to countless unforeseen consequences. Existing precedents offer little guidance on achieving optimal coexistence in this context. Deep divisions on these matters persist between Member States.
Law struggles to regulate religion because religion embodies both a typically immutable identity and a set of often contentious, chosen beliefs. Approaches suitable for an immutable identity are often inappropriate for a set of beliefs and vice versa. While individuals may wear religious symbols to express belief, reflect identity, or simply out of habit, crafting a law that distinguishes between these situations is difficult. Workplace objections to religious symbols might often stem from sheer bigotry, but sometimes they might be a legitimate response to a controversial belief.
Managing religious diversity poses a similar challenge. Some states believe that coexistence is best achieved by requiring everyone to refrain from expressing their religious identity in shared spaces and emphasizing a shared secular citizenship. Other states prioritize protecting religious expression and identity in diverse contexts. Each approach has supporters and detractors, and the evidence regarding which approach is superior in fostering interreligious friendships, mutual respect, and widespread adherence to liberal values is inconclusive. Under these circumstances, it would be highly presumptuous for the Court of Justice to assume it knows the best approach and impose it on all 27 states.
Nevertheless, values are crucial, and complete deference from the Court would be equally inappropriate. A recurring problem is the opportunistic exploitation of secularist principles by those with exclusionary agendas. Neutrality must not serve as a disguised means to exclude minorities, such as European Muslims. The Court, in its previous rulings and in IX and MJ, has taken incremental but significant steps to prevent this by ensuring that employers apply any neutrality policy consistently across all religions and beliefs, rather than targeting a specific faith. While Micropole restricted the overt targeting of symbols from one faith, in MJ, the Court seems to move towards further limiting covert targeting (though it should have articulated this point more clearly).
This will not eradicate exclusionary workplace practices and falls short of some commentators’ expectations. However, considering Europe’s current fluctuating and unpredictable climate, this is probably the most substantial step a multinational court can reasonably take.
Barnard and Peers: chapter 9, chapter 20
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