Freedom of Religion in the Workplace v. Freedom to Conduct a Business, the Islamic Veil Before the Court of Justice: Ms. Samira Achbita Case

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Abstract: The Court of Justice ruled on 14 March 2017 an interesting judgment concerning the dismissal of Ms. Samira Achbita (case C‑157/15, Samira Achbita v. G4S Secure Solutions NV), a Muslim female, who had worked as a receptionist in the private sector. She was dismissed due to her refusal to stop wearing the Islamic headscarf according to an internal rule of the company aimed at establishing a neutral image through the ban of all visible political, religious, and philosophical symbols of its workers in contact with customers. The Court of Justice found that there was not direct discrimination on grounds of religion under Directive 2000/78 and it paved the way for the referring court in order to elucidate if there could have been indirect discrimination by means of the apparently neutral rule of the company.

Keywords: religious discrimination – directive 2000/78 – fundamental rights – direct and indirect discrimination – Islamic headscarf – freedom to conduct a business.
 

I. Introduction

The present Judgment was rendered by the Grand Chamber of the Court of Justice on 14 March 2017.[1] The reference for a preliminary ruling was made by the Cour de Cassation of Belgium in proceedings between Ms. Samira Achbita and G4S Secure Solutions NV, a company whose registered office is in Belgium. Basically, the question relates to the admissibility under EU anti-discrimination law of a prohibition made by a private employer to a female worker of Muslim faith from wearing the Islamic headscarf in the workplace. The Court of Justice was faced with the appropriateness of the dismissal of that worker once she refused to comply with the internal ban of that company on the wearing of visible religious, political or philosophical symbols. Those questions arising in a private litigation belong to the broader core and nuclear problems stated by AG Kokott in her Opinion rendered on 31 May 2016: “There is no need to highlight here social sensitivity inherent in this issue, particularly in the current political and social context in which Europe is confronted with an arguably unprecedented influx of third-country migrants and the question of how best to integrate persons from a migrant background is the subject of intense debate in all quarters”, and, “Ultimately, the legal issues surrounding the Islamic headscarf are symbolic of the more fundamental question of how much difference and diversity an open and pluralistic European society must tolerate within its borders and, conversely, how much assimilation it is permitted to require from certain minorities”.[2]

In this regard, the Grand Chamber of the European Court of Human Rights held in its Judgment of 1 July 2014 the French Law of 11 October 2010 “prohibiting the concealment of one’s face in public places” to be in conformity with the European Convention on Human Rights.[3] The purpose of this law was to eradicate from the public sphere clothing which could preclude identification such as burka, niqab or the full-face veil. The majority of the European Court of Human Rights found that neither respect for equality between men and women, nor respect for human dignity provided for a legitimate aim to restrict the right to cultural and religious identity;[4] however, it found a legitimate aim in guaranteeing “living together”, through “the observance of the minimum requirements of life in society”. This approach has received several criticisms because both of the unusually broad margin of appreciation conceded to the State and due to the fact that far more convincing justifications such as the aim of preventing danger for the safety of persons in the context of general threat to public safety could have been used instead. AG Kokott in its Opinion concerning the Samira Achbita case took into consideration the constitutional status of secularism (laïcité) as a part of Belgian national identity inherent in one of its political and constitutional fundamental structures according to Art. 4, para. 2, TEU. These are grounds upon which “the wearing of visible religious symbols may legitimately be subject to stricter restrictions (even in the private sector and generally in public spaces) than in other Member States”.[5] The Dahlab and Lautsi cases constitute good exemplifications of the margin of appreciation deferred to the States: in the Dahlab case the European Court on Human Rights held inadmissible a claim against the request addressed to the appellant to stop wearing the Islamic headscarf when teaching at primary State school.[6] In the Lautsi case the presence of crucifixes in the classrooms of Italian State school was held in conformity with the Convention in the final decision of the Grand Chamber which overruled the previous decision of the Chamber.[7]

II. The facts of the case

At the time Ms. Achbita started to work for G4S as a receptionist, there was an internal unwritten rule of that company requiring their employees not to wear any visible sign of their political, philosophical or religious beliefs in the workplace. Three years later, Ms. Achbita, of Muslim confession, communicated to the company her intention to wear during working hours an Islamic headscarf. Later on, she was informed that the use of the Islamic headscarf as visible wearing of political, religious or philosophical symbols was contrary to the neutrality policy aimed by that company. The persistence of Ms. Achbita in wearing the headscarf motivated that the G4S works council approved an amendment to the internal regulation, including an explicit neutrality policy, prohibiting employees “from wearing any visible signs of their political, philosophical or religious beliefs and/or from engaging in any observance of such beliefs”. On 12 June 2006, one day before this explicit rule entered into force, Ms. Achbita was finally dismissed on account of her persistent will to wear the Islamic headscarf. Finally, the Belgian Court of Cassation made a preliminary ruling request, asking whether the abovementioned prohibition on wearing the headscarf constituted a direct discrimination forbidden under Directive 2000/78.[8]

III. The right not to be discriminated on grounds of religion in the workplace v. freedom to conduct a business pursuing a policy of neutrality

The preliminary ruling requested sought to dispel the existence of direct discrimination on grounds of religion under Directive 2000/78 due to the application of the neutrality policy implemented by G4S. The Court of Justice in order to give sense to the undefined terms of the Directive made use of the notion of “religion” stemming from the European Court of Human Rights encompassing both the forum internum and the forum externum.[9] According to Art. 52, para. 3 of the Charter of Fundamental Rights of the European Union, the meaning and the scope of the freedom of religion enshrined in Art. 10 of the Charter is the same than the right contained in the Art. 9 of the European Convention on Human Rights. In the case of Ms. Achbita, the Court of Justice found that the internal rule precluding to wear visible signs of political, religious or philosophical beliefs addressed all workers of the company in a general an undifferentiated way, treating them alike, and the Court of Justice has not found any evidence to think that the controversial internal rule was applied differently to Ms. Achbita than to any other worker of the company. Therefore, the Court of Justice rejected the existence of direct discrimination on grounds of religion in the present case.[10]

In order to proportionate the appropriate guidance on all the points of EU Law which require interpretation in view of the object of the dispute, the Court of Justice comes to the finding that the referring court may not automatically discard the existence of an indirect discrimination contrary to Directive 2000/78 under the apparently neutral obligation established within the internal rule at issue. The difference of treatment will be justified within the framework of Directive 2000/78 “if it is objectively justified by a legitimate aim and if the means of achieving that aim are appropriate and necessary”.[11] The Court of Justice has been criticized for applying a very much lenient test.[12] In that regard, the Court of Justice found the employer’s wish to project an image of neutrality of the company towards customers as a prima facie legitimate aim relating to the freedom to conduct a business (enshrined in Art. 16 of the Charter of Fundamental Rights of the European Union); notably in the case of those workers “who are required to come into contact with the employer’s customers”.[13] As regards the appropriateness of the internal rule at stake, the referring court has to ascertain whether the neutrality policy -prior to Ms. Achbita’s dismissal- has been “genuinely pursued in a consistent and systematic manner”, in particular if the prohibition to wear visible signs of political, religious or philosophical beliefs (including skullcaps, crucifixes, turbans…) has been implemented in a general and undifferentiated way regarding those workers who are in contact with customers (as it was the case of Ms. Achbita as a receptionist).[14] The prohibition to wear those signs could only be considered strictly necessary to that aim, according to the Court of Justice’s reasoning, if it is limited to those workers who interact with customers.[15]

In a certainly innovative manner, the Court of Justice introduces a “reasonable accommodation”[16] duty to the employer, which could have offered to Ms. Achbita a post not involving any visual contact with those customers, as an alternative prior to the dismissal, with the limit of not attributing an undue additional burden to the employer. It is for the national court to decide if this adjustment fits in the overall circumstances of the case.[17]

The European Court of Human Rights has given a broad margin of appreciation to pursue neutrality in the field of public service as a legitimate aim which may restrict the freedom to manifest one’s religion (Art. 9 of the European Convention on Human Rights). In the Ebrahimian v. France case it found to be in conformity with the European Convention on Human Rights the decision of non-renewal of the employment contract of a social worker in a public hospital following the applicant’s refusal to stop wearing her headscarf. Religious neutrality requirements may have different and deeper implications in the case of public services.[18]

Finally, even if both cases refer to the external dimension of the freedom of religion in the workplace, it is noteworthy to recall the differences between the case of Ms. Samira Achbita and the case of Ms. Asma Bougnaoui ruled the same day by the Court. The latter was an engineer who was dismissed from the company Micropole SA. From the facts of the case it seems that Ms. Bougnaoui was warned when she was recruited that she will not always be allowed to wear the headscarf performing her tasks for the company due to its policy of discretion. Later on she was dismissed following the subjective desire of a client of that company who had complained about the veil. The Court answered the preliminary reference request proclaiming that Art. 4, para. 1 of the Directive 2000/78 must be interpreted “as meaning that the willingness of an employer to take account of the wishes of a customer no longer to have the services of that employer provided by a worker wearing an Islamic headscarf cannot be considered a genuine and determining occupational requirement within the meaning of that provision”.[19] AG Sharpston in her Opinion in the Bougnaoui case defended quite an opposite view to Kokott in Achbita. She was eager and close to ascertain the existence of a direct discrimination: “In the last resort, the business interest in generating maximum profit should then in my view give way to the right of the individual employee to manifest his religious convictions. Here, I draw attention to the insidiousness of the argument, ‘but we need to do X because otherwise our customers won’t like it’. Where the customer’s attitude may itself be indicative of prejudice based on one of the ‘prohibited factors’, such as religion, it seems to me particularly dangerous to excuse the employer from compliance with an equal treatment requirement in order to pander to that prejudice. Directive 2000/78 is intended to confer protection in employment against adverse treatment (that is, discrimination) on the basis of one of the prohibited factors. It is not about losing one’s job in order to help the employer’s profit line”.[20]

The fact that from the background of the case does not arise that Micropole has implemented a neutrality policy such as a the one seen in the case of G4S Secure Solutions NV can also contribute to the finding of a direct discrimination. From AG Sharpston’s opinion we can also extract an interesting reasoning distinguishing between the forum externum of the freedom of religion and “proselytising on behalf of one’s religion”, not being the employer obliged to tolerate and to support the latter.[21]

IV. Concluding remarks

On 14 March 2017, the Court of Justice rendered two judgments concerning the dismissal of Muslim female workers related with their refusal to stop using the Islamic headscarves in the workplace. Both cases brought issues of discrimination on religious grounds in the field of employment under the abovementioned Directive 2000/78. The case of Ms. Achbita which has been examined throughout the present insight concerns an internal rule of a company aimed at establishing an apparently neutral ban of wearing any visible signs of political, religious or philosophical convictions and addressed to those of its workers who are in contact with customers. The other case ruled the same day, which was originated in a preliminary ruling requested by the French Court of Cassation, refers to the dismissal of Ms. Asma Bougnaoui following the individual petition of a client of the company who was disappointed with the fact the service provider acting on behalf of the company Micropole, Ms. Bougnaoui, was dressed with the Islamic veil.[22]

The Court of Justice was faced in these cases with broader questions of such a magnitude that cannot be the object or the purpose of the proceedings of a preliminary reference request: the role of religion in multi-religious societies, potential discrimination and prejudice towards people having minority religious beliefs beyond the field of employment, etc. The Court of Justice has in the framework of these procedures a jurisdictional power limited by the questions of interpretation and application of EU Law referred and by the aim of providing with an effet utile answer to the domestic court; until date it has rejected the purpose of becoming a human rights court or addressing in more depth such questions belonging to the broader European public order. The Court of Justice is nowadays faced with two pending cases that also bring important claims regarding freedom of religion and belief: the first is the case of Ms. Vera Egenberger who claimed her freedom of belief denied because of her unsuccessful application for a fixed term post at the German Protestant Church supposedly on grounds of her lack of confessional faith. The second case related to “the religious obligation to slaughter an animal (without stunning) during the Islamic Feast of the Sacrifice” as a corollary of the freedom of religion and its impact on the rules on animal welfare arising from the provisions of Regulation 1099/2009.[23]

The Samira Achbita case puts the Court of Justice, as it has been said, in a “damned if you do, damned if you don’t’ scenario”:[24] the Court of Justice had, despite the sharp criticism received, no much more options.[25] Among the criticisms, we find, on the one hand, those who reject the “neutral” character of the ban to wear religious symbols (because it prejudices people whose religious beliefs strongly require an external manifestation of the adherence to them); on the other hand, those who consider that generalized discrimination or belligerence towards religious groups or people is not allowed under EU anti-discrimination law in the field of employment, etc.[26] Of course, the context of rise of xenophobic populism and nationalism emerging in Europe cannot be sidestepped.

The Court of Justice found that there was not a direct discrimination on grounds of religion under Directive 2000/78 in the present case; however, it has shown some guidance to the national court in order to determine whether there was or not indirect discrimination. The freedom to conduct a business contained in Art. 16 of the Charter of Fundamental Rights of the European Union is, in the Court of Justice’s view, a legitimate aim which can be pursued by means of a neutrality policy consisting of a systematic and congruent ban of any visible signs of political, religious or philosophical convictions applied in a general and undifferentiated way among those workers of the company who are in contact with customers. Under EU anti-discrimination law in the field of employment, the burden of proof is normally reversed. Therefore, the Court of Justice could have been expected to be more engaged in helping the national court to require evidence from the respondent company in order to ascertain the non-discriminatory and congruent patterns of application of the neutrality policy.[27]

The subject matter of these cases will be in the immediate future an area where the nuances and differences between the European Court of Justice and the European Court of Human Rights would be of utmost and decisive importance and where an increased necessity for dialogue between them would be required in spite of the rejection of the EU’s accession to the European Convention on Human Rights operated by Opinion 2/13 of the Court of Justice.[28] Both courts should look in a comparative manner to the jurisprudence of courts beyond Europe, such as the US Supreme Court.[29] Finally, the Samira Achbita case leaves room for debate about the hypothetical existence of direct discrimination notwithstanding the declared and intended policy of religious neutrality of a company. The way is paved too for the debate regarding the applicability in EU Law of fundamental rights in private parties litigation.[30]

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European Papers, Vol. 3, 2018, No 1, European Forum, Insight of 26 April 2018, pp. 409-417
ISSN
2499-8249 - doi: 10.15166/2499-8249/199

* Public International Law and International Relations Department, University of Granada (Spain), marinais@ugr.es.

[1] Court of Justice, judgment of 14 March 2017, case C‑157/15, Samira Achbita v. G4S Secure Solutions NV. The same day the Court pronounced another important judgment closely related to the case of Ms. Samira. See Court of Justice, judgment of 14 March 2017, case C‑188/15, Asma Bougnaoui and Association de défense des droits de l’homme (ADDH) v. Micropole SA. Extensive and useful comments of both cases can be found in R. Bin, Il velo svelato, in European Papers, 2017, Vol. 2, No. 1, www.europeanpapers.eu, p. 457 et seq.; J.M. Contreras Mazarío,El TJUE no prohíbe el uso del velo islámico. Comentario a las sentencias del TJUE de 14 de marzo de 2017, asuntos C-157/15 y C-188/15, in Revista de Derecho Comunitario Europeo, 2017, p. 577 et seq.; and S. Robin-Olivier,Neutraliser la religion dans l’entreprise ? Au sujet des arrêts G4S Secure Solutions et Bougnaoui (CJUE 14 mars 2017, aff. C-157/15 et C-188/15), in Revue Trimestrielle de Droit Européen, 2017, p. 577 et seq.

[2] Opinion of AG Kokott delivered on 31 May 2016, case C‑157/15, Samira Achbita v. G4S Secure Solutions NV.

[3] European Court of Human Rights, judgment of 1 July 2014, no. 43835/11, S.A.S. v. France. In particular the joint partly dissenting opinion of judges Nussberger and Jäderblom. See also, X. Delgrange, M. El Berhoumi, Pour vivre ensemble, vivons dévisagés: le voile intégral sous le regard des juges constitutionnels belge et français, in Revue trimestrielle des droits de l’homme, 2014, p. 639 et seq.; and M. Olmedo Palacios, La sentencia del TEDH en el asunto S.A.S. c. Francia [GC], núm. 43835/2011, ECHR 2014, sobre la prohibición del velo integral en lugares públicos, in Diario la Ley, 2014.

[4] See the Parliamentary Assembly of the Council of Europe, Resolution 1743(2010) of 23 June 2010 on Islam, Islamism and Islamophobia in Europe: “[T]he veiling of women, especially full veiling through the burqa or the niqab, is often perceived as a symbol of the subjugation of women to men, restricting the role of women within society, limiting their professional life and impeding their social and economic activities. Neither the full veiling of women, nor even the headscarf, are recognised by all Muslims as a religious obligation of Islam, but they are seen by many as a social and cultural tradition. The Assembly considers that this tradition could be a threat to women’s dignity and freedom. No woman should be compelled to wear religious apparel by her community or family. Any act of oppression, sequestration or violence constitutes a crime that must be punished by law. Women victims of these crimes, whatever their status, must be protected by member states and benefit from support and rehabilitation measures”. Also, in paragraph 16: “[…] Article 9 of the Convention includes the right of individuals to choose freely to wear or not to wear religious clothing in private or in public. Legal restrictions to this freedom may be justified where necessary in a democratic society, in particular for security purposes or where public or professional functions of individuals require their religious neutrality or that their face can be seen”.

[5] Opinion of AG Kokott, Samira Achbita v. G4S Secure Solutions NV, cit., para 125.

[6] European Court of Human Rights, decision of 15 February 2001, no. 42393/98, Dahlab v. Switzerland.

[7] European Court of Human Rights, judgment of 18 March 2011, no. 30814/06, Lautsi and Others v. Italy.

[8] Directive 2000/78/EC of the Council of 27 November 2000 establishing a general framework for equal treatment in employment and occupation.

[9] However, as it is well known especially after the Court of Justice issued Opinion 2/13 of 18 December 2014, the European Convention Human Rights is not an international treaty integrated within the EU legal order and therefore EU Law does not rule the relationship between the European Convention on Human Rights and domestic legal orders of the Member States, being in case of conflict for the later the responsibility to deduce the consequences, see Court of Justice, judgment of 26 February 2013, case C-617/10, Åkerberg Fransson, para. 4.

[10] Samira Achbita v. G4S Secure Solutions, cit., paras 24-32. In the same vein: “The position would certainly be different, it is true, if a ban such as that at issue here proved to be based on stereotypes or prejudice in relation to one or more specific religions – or even simply in relation to religious beliefs generally. In that event, it would without any doubt be appropriate to assume the presence of direct discrimination based on religion. According to the information available, however, there is nothing to indicate that that is the case”, Opinion of AG Kokott, Samira Achbita v. G4S Secure Solutions NV, cit., para. 55.

[11] Samira Achbita v. G4S Secure Solutions, cit., para. 35.

[12] E. Howard, Islamic headscarves and the CJEU: Achbita and Bougnaoui, in Maastricht Journal of European and Comparative Law, 2017, p. 357 et seq.

[13] Samira Achbita v. G4S Secure Solutions, cit., paras 38-39. The Court of Justice refers to the European Court of Human Rights, judgment of 15 January 2013, nos 48420/10, 59842/10, 51671/10 and 36516/10, Eweida and Others v. United Kingdom in order to prove the feasibility to justify, under certain limits, a restriction to the freedom of religion on grounds of the freedom of enterprise. It is interesting to note that, under the 1966 United Nations International Covenant on Civil and Political Rights, an international treaty to which all the EU member states are parties, this scheme could have been more difficult to maintain: in particular its Art. 18, para. 3, only allows limitations to the right to manifest one’s religion or beliefs when they “are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others”. Freedoms contained in Art. 18 of the International Covenant on Civil and Political Rights do not allow derogation in case of public emergency which threatens the life of the nation, according to Art. 4 of the Covenant. It shall also be borne in mind that the freedom to conduct a business is not properly recognized as a human right under the system of the Covenant.

[14] Samira Achbita v. G4S Secure Solutions, cit., paras 40-41.

[15] Ibid., para. 42.

[16] The origins of reasonable accommodations in employment to religious beliefs of employees appeared in the Title VII of the 1964 United States Civil Rights Act, as it was interpreted in the US Supreme Court, judgment of 17 november 1986, Ansonia Board of Education v. Philbrook. It has been said that the Luxembourg approach is more restrictive than the view prevalent in Canadian law where the employer has to demonstrate that it could not provide the reasonable accommodation, see P. Nuevo López, Derecho antidiscriminatorio, libertad religiosa y relaciones entre particulares en el Derecho de la Unión Europea, in Estudios de Deusto, 2017, p. 389 et seq.

[17] Samira Achbita v. G4S Secure Solutions, cit., para. 43. See S. Benedeti Lahuerta, Wearing the veil at work: Achbita and Bougnaoui – Can a duty to reasonable accommodation be derived from the EU Concept of indirect discrimination?, in EU Law Analysis, 15 March 2016, eulawanalysis.blogspot.com.es.

[18] European Court of Human Rights, judgment of 26 November 2015, no. 64846/11, Ebrahimian v. France. A comment of the previous issue can be found in S. Garahan, Ebrahimian v France: Application no 64846/11: European Court of Human Rights, Fifth Section: Casadevall, Yudkivska, De Gaetano, Potocki, Jäderblom, Pejchal, O’Leary JJ; De Gaetano J dissenting; O’Leary J partly dissenting: 26 November 2015, in Oxford Journal of Law and Religion, 2016, p. 365 et seq. The European Court of Human Rights had already upheld to be in conformity with the Convention the circular issued by the Istanbul University prohibiting students wearing the Islamic headscarf from being admitted to lectures. By doing so the European Court of Human Rights acknowledged the principle of secularism of the State as an essential foundation of Turkey, European Court of Human Rights, judgment of 10 November 2005, no. 44774/98, Leyla Şahin v. Turkey.

[19] Asma Bougnaoui and Association de défense des droits de l’homme (ADDH) v. Micropole SA., cit.

[20] Opinion of AG Sharpston delivered on 13 July 2016, case C-188/15, Asma Bougnaoui and Association de défense des droits de l’homme (ADDH) v. Micropole SA., para. 133.

[21] Ibid., paras 73-74.

[22] Asma Bougnaoui and Association de défense des droits de l’homme (ADDH) v. Micropole SA., cit.

[23] See respectively, Opinion of AG Tanchev delivered on 9 November 2017, case C-414/16, Vera Egenberger v Evangelisches Werk für Diakonie und Entwicklung e.V., and Opinion of AG Wahl delivered on 30 November 2017, case C-426/16, Liga van Moskeeën enIslamitische Organisaties Provincie Antwerpen, VZW and Others v Vlaams Gewest.

[24] E. Spaventa, What is the point of minimum harmonization of fundamental rights? Some further reflections on the Achbita case, in EU Law Analysis, 21 March 2017, eulawanalysis.blogspot.com.es.

[25] R. McCrea, Faith at work: The CJEU’s headscarf rulings, in EU Law Analysis, 17 March 2017, eulawanalysis.blogspot.com.es.

[26] E. Howard, Islamic Headscarves and the CJEU: Achbita and Bougnaoui, cit.

[27] E. Spaventa, What is the point of minimum harmonization of fundamental rights? some further reflections on the Achbita case, cit.

[28] S. Ouald-Chaib, V. David, European Court of Justice keeps the door to religious discrimination in the private workplace opened. The European Court of Human Rights could close it, in Strasbourg Observers, 27 March 2017, strasbourgobservers.com; in more depth concerning the differences between Luxembourg and Strasbourg courts regarding freedom of religion, 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, in Oxford Journal of Law and Religion, 2016, p. 183 et seq.

[29] US Supreme Court, judgment of 11 July 1993, Church of the Lukumi Babalu Aye v. City of Hialeah: where an apparently neutral local prohibition on sacrificing animals for other purposes different to food consumption was found unconstitutional. The local prohibition was targeting in a disguised way the Santeria rituals of chicken and other animals sacrifice while paving the way for kosher slaughter.

[30] P. Nuevo López, Derecho antidiscriminatorio, libertad religiosa y relaciones entre particulares en el Derecho de la Unión Europea, cit.

 

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