The CJEU's Achbita and Bougnaoui decisions on workplace bans of Islamic headscarves are disappointing as they are not providing enough guidance to the national courts concerning the criteria that they need to take into consideration in their attempts to find a balance between the rights in conflict. The judgments do not provide any criteria for the admissibility of dress codes other than that they should be neutral and objectively justified. Even those terms though are not analysed by the court in a sufficient manner

Tourkochoriti, Ioanna

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Protection with Hesitation: on the recent CJEU Decisions onReligious Headscarves at Work verfassungsblog.de /protection-with-hesitation-on-the-recent-cjeu-decisions-on-religious-headscarves-at-work/Ioanna Tourkochoriti Di 21 Mrz 2017The Court of Justice of the European Union issued its much-anticipated decisions on two requests for preliminaryrulings concerning whether the prohibition on wearing headscarves at the workplace constitutes discrimination (C-188/15 Asma Bougnaoui, ADDH v. Micropole SA and C-157/15 Achbita v. G4S Secure Solutions NV ). The decisionsare carefully written and trying to set out refined criteria, which would define the permissibility of limiting employees’headscarves at work. In both cases the court held that limitations on employees’ religious headscarves can beacceptable if they are based on an internal policy of political, philosophical or religious neutrality set by theemployer. Nevertheless, they are rather disappointing as they are not providing enough guidance to the nationalcourts concerning the criteria that they need to take into consideration in their attempts to find a balance betweenthe rights in conflict. The judgments do not provide any criteria for the admissibility of dress codes other than thatthey should be neutral and objectively justified. Even those terms though are not analysed by the court in asufficient manner.In Asma Boungnaoui the preliminary ruling involved the interpretation of Article 4(1) of Council Directive 2000/78/ECof 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ2000 L 303, p. 16). Ms Boungnaoui is a design engineer working for a private company in France. As part of herwork duties she had to provide her services in the customers’ premises. The customer complained that herheadscarf had upset some of its employees. Article 4(1) of the directive allows Member States to provide that adifference in treatment based on one of the forbidden criteria of discrimination is not discriminatory if it constitutes a“genuine and determining occupational requirement, provided that the objective is legitimate and the requirement isproportionate”. Although the CJEU notes the need to interpret exceptions to the principle against discriminationnarrowly, it indicates that even a broad exception would be acceptable if presented as an occupational requirementobjectively dictated by the “nature” of the duties of the employee. Nevertheless, the Court must be praised for notaccepting that the wishes of the customer could constitute such an objective criterion (C-188/15 Asma Bougnaoui,ADDH v. Micropole SA).In the second preliminary ruling Ms Achbita, was a receptionist who was dismissed by her employer for violating anunwritten rule that workers should not wear visible signs of their political, philosophical or religious beliefs in theworkplace. In this decision the CJEU should be praised for noting that even a neutral policy can constitute indirectdiscrimination. It is not inconceivable, the CJEU notes, that the referring court may conclude that an apparentlyneutral policy may constitute indirect discrimination on the basis of religion when it “results, in fact, in personsadhering to a particular religion or belief being put at a particular disadvantage” (C-157/15 Achbita, Centrom voorgalijkheid van kansen en voor racismebestrijding v. G4S Secure Solutions NV, Arrêt n° 630 du 9 avril 2015 (13-19.855). Indirect discrimination exists if there is no legitimate justification for the neutral policy. Nevertheless it heldthat the desire to display in relations with both public and private sector customers a policy of political, philosophicalor religious neutrality must be considered legitimate, provided that the policy is genuinely pursued in a consistentand systematic manner and the prohibition must be strictly necessary to achieve the aim pursued. The court seemsto be accepting a very broad definition of what constitutes “objective justification”. In fact this definition is muchbroader compared to what would justify a similar policy in the US. US federal antidiscrimination law largely inspired the EU antidiscrimination directives. U.S. legislation foresees thepossibility for a reasonable accommodation for religious practices (43 U.S.C.§ 2000e (j)), which does not exist inthe EU directives in the clauses protecting against discrimination on the basis of religion. The concept of reasonableaccommodation appears in the EU directives only concerning disability (Article 5 of directive 2000/78/EC – 421/3U.S.C. § 12112). The concept of “reasonable accommodation” guides the courts to look for ways to reconcile boththe requirements of the employer and the rights of the employee. Although the term does not exist in the text of thedirectives as such, the courts could have referred to it as a tool of interpretation in order to strike a fair balancebetween the crucial interests at stake. It could have considered that it is a principle that is dictated by the logic of thedirective as a whole in order to combat discrimination. In cases of conflicts of rights courts usually refer tointermediate concepts that help them strike a balance. The principle of reasonable accommodation, just like theprinciple of practical harmonization are principles embedded within the European legal culture which help courts finda solution to similar cases of righs in conflict.The absence of a clause about reasonable accommodation in the text of the E.U. directive indicates less sensibilityin Europe in favour of protecting freedom of religion, than in the US. Existing case law in the U.S. confirms thishypothesis. Courts usually will evaluate neutral dress policies in reference to the principle of reasonableaccommodation, that is in reference to the need to find a solution that might be able to reconcile the conflictinginterests at stake. Even neutral blanket bans as the ones at stake in the cases before the CJEU are evaluated inreference to whether they impede excessively upon the freedom of religion of employees. Employers have anaffirmative duty to accommodate which requires them to do more than simply not discriminate (see Georg A.Rutherglen and John J. Donohue III, Employment Discrimination Law and Theory , Foundation Press 2012, p.508).Recently the U.S. Supreme Court reaffirmed this obligation (E.E.O.C. v. Abercrombie & Fitch Stores Inc. 575 U.S.__ (2015). The Supreme Court held that a refusal to hire a person because the headscarf she wore pursuant to herreligious obligations conflicted with the employer’s neutral dress policy violates Title VII disparate treatment (directdiscrimination) provision. Under US Title VII employers are obliged to reasonably accommodate to “a religiousobservance or practice” unless they are able to prove that there would be undue hardship on the conduct of theemployer’s business (42 U.S.C. 9§2000e(j)). The Supreme Court interpreted the law to mean that there is anobligation for the employer to accommodate as mere neutrality is not enough (Id, at 6). Rather, the law affirmativelyobliges employers not “to fail or refuse to hire or discharge any individual… because of such individual’s religiousobservance and practice” (Id, at 6,7). For the same Court when an applicant requires an accommodation as anaspect of religious practice, then “it is no response that the subsequent ‘failure to hire’ was due to an otherwiseneutral policy” (Id, at 7). In other words, according to the court even “otherwise-neutral policies’” must give way to theneed for an accommodation (Id, at 7). This means that employers are obliged to accommodate religious dress in theworkplace unless there is serious obstruction with the accomplishment of the duties of the employee. For instance,the New York City Police Department was obliged to accommodate a traffic enforcement agent by allowing him towear a turban on the job (see Jaggi v. New York City Police Department CHR Compl. No. M-EmC-02-1012382-E,NY Commission on Human Rights 1498/03, Apr. 28, 2004)).Therefore, the CJEU could have instructed the national courts to investigate whether the employers could prove thatwearing the headscarf prevents the employees from accomplishing their duties properly, or that here is a safety orother danger to the public that can be prevented and that justifies not accommodating the right of the employee toexpress her religion. Had it given such instructions it would have narrowed down even further the concept of“objective justification” which could justify a dress policy and could have made it compatible with the need to protectreligious freedom.The absence of a clause on reasonable accommodation for religion in the text of the E.U. directive indicates lesssensibility in Europe in favour of protecting freedom of religion than in the US. In general, freedom of religion isprotected more strictly in the U.S. than in Europe. Nevertheless, the Court could have brought it in throughinterpretation as the principle of neutrality is not enough. Neutrality is a fiction, a counterfactual ideal. The states intheir attempts to implement “neutral policies” always give legal form to social rules that have emerged out ofnumerous cultural influences, among others religious. Therefore, the reference to neutrality is not enough in thiscontext, because the understanding of neutrality is culturally defined. The risk of giving preference to one religiousgroup among others under the shield of “neutrality” is always present (see Ioanna Tourkochoriti “The Burka Ban:Divergent Approaches to Freedom of Religion in France and in the U.S.A.”, 20 William & Mary Bill of Rights Journal ,791-852, 2012). The long experience with trying to assure peaceful coexistence among various religious2/3communities in the US has made courts more sensitive to employees’ needs for religious expression. Thisexperience can be very edifying for the EU Member States. The mechanism of accommodation is probably a goodmedium to assure integration of immigrants by preventing the development of a sense of alienation (See JuliusGrey, “The Paradoxes of Reasonable Accommodation”, Options Politiques, Septembre 2007, repr. In DavidOppenheimer, Sheila R. Foster and Sora Y. Han, Comparative Equality and Anti-Discrimination Law , FoundationPress 2012, p.36). The CJEU could have developed a more robust doctrine against religious discrimination in theworkplace. Although it does point out the danger of indirect discrimination in neutral policies, as it stands, thedecision fails to guide properly national courts in their efforts to tackle religious discrimination in the workplace. Onecan only hope that national courts will be able to go further and require reasonable accommodation between therelevant interests at stake.LICENSED UNDER CC BY NC NDSUGGESTED CITATION  Tourkochoriti, Ioanna: Protection with Hesitation: on the recent CJEU Decisions onReligious Headscarves at Work, VerfBlog, 2017/3/21, http://verfassungsblog.de/protection-with-hesitation-on-the-recent-cjeu-decisions-on-religious-headscarves-at-work/, DOI: https://dx.doi.org/10.17176/20170321-143048.3/3

Protection with Hesitation: On the recent CJEU Decisions on Religious Headscarves at Work

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Protection with Hesitation: On the recent CJEU Decisions on Religious Headscarves at Work

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