Leone, C.

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UvA-DARE is a service provided by the library of the University of Amsterdam (https://dare.uva.nl)UvA-DARE (Digital Academic Repository)Down the rabbit hole of unequal opportunities: Achbita and the way outLeone, C.Publication date2021Document VersionFinal published versionLink to publicationCitation for published version (APA):Leone, C. (Author). (2021). Down the rabbit hole of unequal opportunities: Achbita and theway out. Web publication or website, Transformative Private Law Blog.https://transformativeprivatelaw.com/down-the-rabbit-hole-of-unequal-opportunities-achbita-and-the-way-out/General rightsIt is not permitted to download or to forward/distribute the text or part of it without the consent of the author(s)and/or copyright holder(s), other than for strictly personal, individual use, unless the work is under an opencontent license (like Creative Commons).Disclaimer/Complaints regulationsIf you believe that digital publication of certain material infringes any of your rights or (privacy) interests, pleaselet the Library know, stating your reasons. In case of a legitimate complaint, the Library will make the materialinaccessible and/or remove it from the website. Please Ask the Library: https://uba.uva.nl/en/contact, or a letterto: Library of the University of Amsterdam, Secretariat, Singel 425, 1012 WP Amsterdam, The Netherlands. Youwill be contacted as soon as possible.Download date:28 Nov 2023Down the rabbit hole ofunequal opportunities:Achbita and the way outHome / Labour / Down the rabbit hole of unequal opportunities: Achbita and the way outPrevious Next AuthorPosted byCandida LeoneMarch 29th, 2021Recent PostsCritical approaches inEU law – still ablindspot.Urban commons, fromItaly to EuropeLegal innovation toempower thedisempowered inservice of a sustainablecityPositive SustainableObligations in PropertyLawDown the rabbit hole of unequalopportunities: Achbita and the wayoutReading Time: 8 minutesNon-discrimination: Transformative contract law?From a broad social perspective, non-discrimination law is arguably the area ofprivate law with the most sweeping transformative ambitions. This is re ectedin the introduction to the EU’s Framework directive (Directive 2000/78), with itsdeclared aim tolay down a general framework for combating discrimination on the grounds ofreligion or belief, disability, age or sexual orientation as regards employmentand occupation, with a view to putting into e ect in the Member States theprinciple of equal treatment.While labour lawyers have been sometimes sceptical about the promises ofanti-discrimination rules, others – in particular, contract lawyers – havehighlighted the considerable challenge non-discrimination brings to freedom ofcontract and, in particular, the freedom to choose a contractual partner. Inrecent years, the framework of non-discrimination has extended well beyondemployment relationships, casting contract law disputes as a ground forbalancing and establishing rules of coexistence in diverse societies.ARTICLES TEAM ABOUT US CONTACT SUBMIT POST Academic freedom andthe perils of theemployment contract inmanagerial universities– time for actionThe struggle to accommodate such diversity is evident in recent disputes beforethe European Court of Justice (‘CJEU’), which have brought to the fore theambiguities and tensions hidden in a “framework” approach to non-discrimination in the Union and of a human-rights based approach to theproblem. Is non-discrimination, ultimately, a matter of freedom ofreligion/thought, or is it a matter of inclusion and equal treatment forunderrepresented and quite possibly oppressed groups? The consequences ofthe failure to confront this question are visible in two cases currently pendingbefore the CJEU, which I will discuss in the rest of this blog post.Currently pendingIn these cases, WABE and Müller Weinhandel, two employers have beenchallenged by former employees who had been dismissed due to theirinsistence on wearing a headscarf while performing their work activities – as aday care teacher and shop attendant respectively. WABE, the  rst employer,had put in place a written neutrality policy which prohibited all displays ofreligious, political and philosophical a liation, either via clothing or viacommunication to the children, parents, or third parties; Müller Weinhandel, onthe other hand, declared the existence of a more informally established policyprohibiting the display of “large scale” signs only. In other words, wearing asmall cross or other small religious symbol would not be considered to fallunder the prohibition. Both cases hail from Germany, where the applicantsthought national law should make the employer’s instructions invalid and theirdismissal lacking justi cation.Prequel: Achbita and its siblingsThe German courts seized with the cases thought the answer depended on theimplications of the CJEU’s 2017 landmark headscarf cases, Achbita andBougnaoui. The cases required the CJEU to clarify the application of both directand indirect discrimination rules to (the impossibility of wearing) headscarves.Direct discrimination directly attaches consequences to one’s religion, ethnicity,sexual preferences, or political and philosophical orientation; it is prohibited ingeneral, with the exception of cases in which it can be justi ed in light of thespeci c nature of the work to be carried out. Indirect discrimination, on theother hand, occurs when apparently general rules have a disproportionatee ect on certain groups. It is also prohibited, but can be allowed when themeasures adopted pursue a legitimate goal and are appropriate andnecessary. In Bougnaoui, the CJEU found that it was not open to an employer todirectly discriminate against an employee wishing to wear an Islamic headscarfon account of client preferences.In Achbita, however, the CJEU established that a general policy prohibiting thedisplay of all signs of political, religious, philosophical or political a liation, aimedat enforcing a company’s image of neutrality, can be allowed. Such prohibitionrepresents a form of indirect discrimination – in so far as it disproportionallya ects employees belonging to certain (in particular: religious) groups;however, according to the CJEU, such discrimination can be justi ed in view ofthe company’s right to conduct business (article 16 EU Charter of FundamentalRights), which protects a company’s desire to project an image of neutrality.The decision in Achbita has perhaps unsurprisingly been met with criticism froma variety of corners; what is more interesting here, however, is its legacy.Achbita, in fact, made it possible for employers who wished to prohibit thewearing of an Islamic headscarf to do so in a relatively clean way – that is, byadopting a neutrality policy either via its works council or, possibly, by unilateralregulation. This was not entirely without strings attached – the CJEU, also relyingon previous case law by the European Court of Human Rights, expresslyrequired the policy to be implemented consistently. Besides, some were quickto observe that Achbita concerned a Belgian case, and that Belgium, much likeFrance, had a speci c view on secularity and neutrality which may have a ectedthe context of the case. Employers in more traditionally multicultural (former)Member States should not rush to adopt neutrality policies on the assumptionthat Achbita would cover them.It seems that employers were in fact quite keen to try them out, if we are tojudge on the basis of the two German cases currently before the CJEU. Giventhe publicity a orded to AG Kokott’s opinion in Achbita, it may not be acoincidence, in fact, that Müller Weinhandel announced a neutrality policy onemonth after the AG’s decision was published back in 2016. The second employerinvolved in the cases, WABE, published its policy in 2018, that is, a few monthsafter Achbita. In the case of Müller Weinhandel, the limitation of the prohibitionto prominent, large-scale, signs raised new questions. According to the employer,neutrality in this context served “inter alia” the purpose of avoiding con ictsamong employees.The CJEU now has to, in essence, decide on four questions:  (i) whether suchpolicies are really correctly framed as direct, rather than indirect,discrimination; (ii) whether the employee’s religious freedom should not beweighted di erently (than in Achbita) in the context of the indirectdiscrimination assessment; (iii) whether German constitutional law can o er ahigher degree of protection to the concerned employees than the directive(which is a minimum harmonization measure); (iv) whether a prohibition onlarge-scale signs only is also covered under the Achbita assessment. We willhere discard (iii), which would o er a way out in the concrete cases, but wouldnot redress the problems created by Achbita, and instead concentrate on theother points starting from the latter: what is the problem with prohibiting onlylarge-scale displays?“Large scale” signs and direct vs indirect discriminationThe prohibition of “large-scale” signs under scrutiny in Müller Weinhandel showsthe slippery slope intrinsic in Achbita: namely, neutrality policies are introducedmerely as headscarf bans in disguise. Such a ban, outside of a general neutralitypolicy, would qualify as direct discrimination, and would need to clear a muchhigher justi catory threshold. Let us, however, be clear: such neutrality policiesare not the kind of measure the exceptions to indirect discrimination aim toallow. What are those, then? Imagine a company that requires all employees towork on Friday nights or on Sundays. Such a company schedule may place anextra burden on employees from certain religious groups, or even preventsome of them from working for the company, and thus would constituteindirect discrimination. However, if the company’s business model requires (orpro ts from) such a schedule, the negative e ect needs to be accepted. This isvery di erent from a policy that directly aims to compress employees’fundamental rights and is somewhat legitimized by the fact that, in doingso, it negatively a ects several di erent groups at the same time.  To theextent that, as the AG involved in these cases (unlike, one must say, muchscholarship) believes, the CJEU was right to consider such policies under theindirect discrimination rules [para 55 opinion], they must be subject toparticularly intense scrutiny.In light of this, contrary to what the AG concludes, a policy which only prohibitslarge-scale displays is more, not less, suspicious. It may be the case that it is lessrestrictive than a prohibition covering all signs, but what kind of neutrality can itproject? By e ectively treating employees di erently on the basis of the type ofreligious items they sport, the policy seems, in particular, unlikely to preventtensions and con icts among employees – the very aim stated by MüllerWeinhandel, which the AG somehow forgets to go back to in his opinion.Furthermore, the less general the policy is, the closer it comes to direct – ratherthan indirect – discrimination. The AG’s opinion that a more targeted policy,restricting itself to objects that are more likely to o end customers [para 74] isultimately a more innocuous policy, is at best naïf and, in any case, ill-conceived.[I am only indirectly engaging with the opinion, which has been extensively andexcellently criticized elsewhere]Taking proportionality seriously: what goes into the balance?Now that we have established the somewhat ambiguous position of neutralitypolicy in the non-discrimination panorama, it becomes clear that saying thatany infringement of employees’ fundamental rights they may entail is justi edwhen the company declares the intention to project a neutral image amountsto insu cient scrutiny. In fact, the rule of article 2.2.b(i) is an exception to theprohibition of indirect discrimination and as such must be constructednarrowly. This applies throughout the three classical prongs of theproportionality test, and, in particular, to the balancing between the rights andinterests at stake. It has been argued elsewhere that this balancing has beenmisconstrued by the CJEU in Achbita, by framing the wearing of a headscarf asright to manifest one’s religion rather than to practice it; however, I want topropose here a di erent reading.AG Rantos, in his opinion, says that not freedom of religion, but rather theprohibition of discrimination [see para 97] is the founding principle of theDirective and that freedom of religion as such should not play a preponderantrole in interpreting it: I want to take this claim seriously and argue that on thisground the cases show that Achbita is untenable precedent and should berevised. In fact, the cases show how Achbita, and the neutrality policies itendorses, represent an exclusionary factor for Muslim women trying to accesspaid work – access which, research shows, is already complicated for hijab-wearing women in western countries. At least one more similar case (fromBelgium) is currently pending before the CJEU.  If the self-standing goal of theanti-discrimination framework is to provide underrepresented groups access toemployment on equal conditions as members of the majority, a mere desire toproject a neutral image, which is based on a subjective declaration by theemployer that they wish to pursue such an aim, cannot be enough.How to  x Achbita and save anti-discrimination lawThe good news is that Achbita is very easy to  x: it is enough to recall that theCJEU’s interpretation of the Directive must be read in the context of theinterpreted rule being an exception and go back to the missing proportionalitytest:1. at the very least, the outcome of this test could be left to the MemberStates’ courts, tasked to assess whether, in a given case, the company’sdesire should be given such weight to overcome the employee’s right toequal treatment, access to employment and, possibly, freedom to practisetheir religion;2. in a slightly better scenario, the CJEU would indicate to courts that thisassessment needs to be carried out very carefully, requiring the employerto show why such neutrality is required in their business;3. in any case, the CJEU should at least acknowledge that in abstractoneutrality may also be achieved (in considerably less invasive fashion) bypluralism – that is, by allowing the displaying of various signs of political,religious or philosophical a liation up to a point which does notundermine overall professionalism;4. to  nish o , in no event should the CJEU accept AG Rantos’ submissionthat prohibiting large-scale signs only is a lesser evil in this case: theGerman court’s submission that such prohibition may fail the adequacytest o ers the easiest way out, and all the CJEU need do is confront theemployer’s own argument that the aim is not to appease the customer,but to avoid workplace con icts – an aim which can hardly be pursued bytreating similar situations di erently.While EU non-discrimination may still be a long way from delivering on itstransformative promises, the CJEU has a chance to prevent it from insteadperforming a nefarious transformation – e ectively facilitating the exclusion ofMenuArticlesTeamAbout UsContactSubmit PostRecent PostsSeptember 28, 2023Criticalapproaches inEU law – still ablindspot.July 21, 2023Urbancommons, fromItaly to EuropeCategoriesDigitalization (3)Finance (3)Labour (2)Property (5)Social Justice (5)Sustainability(16)Theory (8)Social Media Name (required) Email (required) WebsiteBy Candida Leone | March 29th, 2021 | Labour | 0 CommentsShare this story, choose yourplatform! Leave A CommentComment...Save my name, email, and website in this browser for the next time Icomment.Post CommentMuslim women and other minorities from the labour market. Let this chancenot be wasted: Achbita must fall!(Photo: Nicola Fioravanti)

Down the rabbit hole of unequal opportunities: Achbita and the way out

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Down the rabbit hole of unequal opportunities: Achbita and the way out

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