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

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]