Ronan McCrea*

* Senior Lecturer at the Faculty of Laws at UCL and the author of Religion and the Public Order of the European Union (OUP 2010) and Religion et l’Ordre juridique de l’Union Europeenne (Bruylant 2013).

Recent weeks have seen two opinions from Advocates General of the Court of Justice of the European Union concerning religious expression in the workplace. This follows a period where religious issues were largely absent from Luxembourg case law.

Interestingly, AG Kokott (in her opinion in Achbita) and AG Sharpston (in her opinion in Bougnaoui) appear to reach different conclusions. Both considered the compatibility of rules limiting religious symbols at work (specifically Islamic headscarves) with the prohibitions against workplace discrimination found in Directive 2000/78 – the framework equality directive. This directive prohibits workplace discrimination based on age, religion, sexual orientation, and disability. (For more context on these cases, see Sara Benedi Laheurta’s earlier analysis.)

While both Advocates General agreed that a balancing exercise is necessary when a ban on religious symbols is considered indirectly discriminatory, they disagreed on whether such a ban could be considered direct discrimination.

Their contrasting conclusions highlight the central challenge in addressing religion in the workplace.

The core difference between the Advocates General lies in their characterization of religion. AG Kokott categorized religion as a matter of belief and ideology, distinguishing it from protected characteristics like gender or race. She pointed out that the ban applied to all religious and political symbols:

“That requirement of neutrality affects a religious employee in exactly the same way that it affects a confirmed atheist who expresses his anti-religious stance in a clearly visible manner by the way he dresses, or a politically active employee who professes his allegiance to his preferred political party or particular policies through the clothes that he wears (such as symbols, pins or slogans on his shirt, T-shirt or headwear).” (para 52)

This distinction highlights the difference between:

“immutable physical features or personal characteristics — such as gender, (26) age or sexual orientation — rather than with modes of conduct based on a subjective decision or conviction, such as the wearing or not of a head covering at issue here.” (para 45)

Conversely, AG Sharpston determined that direct discrimination occurred, stating that an employee “who had not chosen to manifest his or her religious belief by wearing particular apparel would not have been dismissed. Ms Bougnaoui’s dismissal therefore amounted to direct discrimination.” (para 88)

She viewed religion as a form of identity similar to race or gender:

“to someone who is an observant member of a faith, religious identity is an integral part of that person’s very being. The requirements of one’s faith – its discipline and the rules that it lays down for conducting one’s life – are not elements that are to be applied when outside work (say, in the evenings and during weekends for those who are in an office job) but that can politely be discarded during working hours. Of course, depending on the particular rules of the religion in question and the particular individual’s level of observance, this or that element may be non-compulsory for that individual and therefore negotiable. But it would be entirely wrong to suppose that, whereas one’s sex and skin colour accompany one everywhere, somehow one’s religion does not.” (para 118)

As is often the case in debates about law and religion, it seems the two Advocates General might be talking past each other. The challenge in regulating workplace religious expression is that religion encompasses both ideological beliefs and identity.

This duality creates complexities. Treating religion as a set of beliefs often leads to different outcomes than treating it as a facet of identity.

If religion is seen as an unchangeable identity, then preventing someone from wearing a headscarf or crucifix while interacting with the public is similar to refusing service to a worker based on their race. However, if religion is viewed as ideology and belief, then restricting religious symbols in customer interactions is no different than prohibiting a worker from displaying political affiliations through clothing or accessories.

Often, reconciling the belief and identity aspects of religion proves challenging.

The crucial legal question is whether an employer’s decision to categorize religion as belief rather than identity was justified. In Strasbourg cases, the focus shifts to whether a state’s characterization of religion was reasonable. (See R McCrea, “Secularism before the Strasbourg Court: Abstract Constitutional Principles as a Basis for Limiting Rights” 79 (4) Modern Law Review 691-705.)

Therefore, AG Sharpston’s argument emphasizing religion as an identity akin to race is not the primary issue. It’s clear that religion encompasses both. The real need is for criteria to determine when it is appropriate to treat religion as a belief and when to treat it as an identity.

The Advocates General eloquently presented arguments for viewing religion in the workplace as both identity and belief. Both perspectives have their place. For blasphemy laws, seeing religion as ideology may be most suitable. When considering access to services, viewing it as identity may be more appropriate. The situation for employees is more nuanced. We can hope that the upcoming Court of Justice rulings will provide criteria for determining which approach is preferable in the context of employees at work. Given the sensitivity of this issue, the Court may be inclined, like its Strasbourg counterpart, to deem it reasonable for Member States to choose either approach.

Barnard & Peers: chapter 20

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