Judgment in Joined Cases C-804/18 and C-341/19
Figure 1. The flag of the European Union.
The European Court of Justice (ECJ) with its judgment published on 15 July 2021 decided to ban people from wearing any religious, political, philosophical or other symbols. This ruling may be justified by the employer's need to present a neutral image towards customers or to prevent social disputes. However, the ECJ emphasises that this justification for a prohibition has to correspond to a genuine need from the part of the employer and, in relation with the compromise of rights and interests of each case, the national courts of the member states can take into account the legal framework of each member state and, especially, the national legislation on religious freedom. The Court specified the circumstances under which a different treatment of an employee caused by the wearing of religious symbols can be justified only if the employee violates internal company regulations during work. The Court specified the circumstances under which the ban of religious symbols can be considered legal by stating that the employee must violate internal company regulations during work.
Ebrahimian v. France (ECHR)
In the past, the European Court of Human Rights had ruled in favour of a ban on visible religious symbols in the workplace. In 2000, Muslim social worker Christiane Ebrahimian, who worked in the psychiatric department of a hospital in the Parisian suburb of Nanterre, learned that her contract would not be renewed because she refused to take off her headscarf, despite complaints from patients and colleagues. She decided to sue the hospital, taking her case all the way to the ECHR. The wearing of a veil that covers the head was considered by the court to be an ostentatious manifestation of her religion that was incompatible with the neutral space required by a public service. According to Article 1 of the French Constitution, secularism is a core principle of the French Republic and the resulting religious neutrality of public services were in opposition to the applicant’s demand because of the need to ensure equal treatment of the users of the public institution that employed her. The interference could therefore be regarded as proportionate to the aim pursued and, accordingly, the interference in the claimant’s freedom to manifest her religion was necessary in a democratic society. Expressing his dissent with the ruling Judge De Gaetano stated that a woman may wear a headscarf not to manifest a religious belief, or any belief for that matter, but for a variety of other reasons. The same can be said of a man wearing a full beard, or a person wearing a cross with a necklace. Requiring a public official to ‘disclose’ whether that item of clothing is a manifestation or otherwise of his or her religious belief does not sit well with the purported benefits enjoyed by public official.
Figure 2. "A ban, however, can be indirectly discriminatory unless it is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary."
Background
IX (as written in the judgement) was employed as a special needs carer in a childcare day center. Her employer, WABE eV (as written in the judgement) introduced a policy of ‘political, philosophical and religious neutrality’ by prohibiting staff who were in contact with children or parents from wearing any visible signs of their political, philosophical, or religious belief. She was suspended from work and then was issued warnings when she refused to remove her headscarf. Another colleague was also told to remove a cross that was visible around her neck. MJ was employed as a shop assistant and cashier. Her employer, Mueller, requested that she attend work without ‘conspicuous, large-sized signs’ of any political, philosophical or religious belief, and sent her home when she refused to remove her headscarf. Both employees brought claims to the German courts which referred questions to the ECJ querying whether the bans constituted discrimination on the grounds of religion or belief under the Directive.
Decision
The court ruled, in both cases, that the employers’ policies were lawful, being neither directly nor indirectly discriminatory[1]. According to the Court, a prohibition on wearing any visible sign of political, philosophical or religious belief in the workplace is not direct discrimination provided that the ban is applied in a general and undifferentiated way. A ban does not establish a difference of treatment based on religion or belief, since every person may have a religion or belief. Given, however that some Muslims consider the wearing of a headscarf obligatory for women, some individuals may experience greater inconvenience as a result of their religious beliefs. The ECJ noted also that WABE had applied the ban to another employee, therefore, it suggested that the ban was applied without differentiation. In order for the ban to be non-discriminatory every visible symbol regardless of its size has to be prohibited.
A ban, however, can be indirectly discriminatory unless it is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. A policy of neutrality can amount to a legitimate employer interest if the employer is able to demonstrate a genuine need for the policy and not mere desire or dislike towards religious symbols. The wishes of customers or users, here the children’s parents, are taken into account as well as evidence that the employer’s freedom to conduct their business would be undermined if they would suffer negative consequences on the business without the ban.
The ban must also be appropriate, meaning that it must be genuinely pursued in a consistent and systematic manner and limited to what is strictly necessary. The Court reminded that for the ban to be appropriate, all relative rights and freedoms of the employers have to be taken into account and that national courts, keeping in mind all the circumstances and evidence of the cases, should calculate interests and rights and limit the rights and freedoms in question only when this is absolutely necessary.
Figure 3. Is it an unfair choice to impose a ban on an individual's right to express themselves through religious symbols?
Reactions and Criticism
Many organisations welcomed the ruling as a win of secularism. The British Humanist Association's Chief Executive Andrew Copson said: "We need to take an approach that balances everyone's rights fairly and we are pleased that the European Court of Justice has today appeared to reinforce that principle."
However, religious and rights groups have criticised strongly the Court’s decision. The Conference of European Rabbis said that this decision along with the rise of racially motivated incidents is a sign that faith communities are no longer welcome in Europe. Additionally, rights group Amnesty International criticized the ECJ for having opened a "backdoor to prejudice." According to AI, identity and appearance have become a political battleground so and as a result, more institutional protection is needed. Finally, Human Rights Watch criticised the decision stating that such prohibitions can feed patriarchal norms that underpin control of women’s bodies and behavior, while European states are exerting increasing control over women’s decisions and bodies. HRW also mentioned the face veil bans in Denmark and Switzerland noting that this decision could help legitimize both public and private efforts to restrict women’s dress, thus causing Muslim women to choose between their faith and their jobs.
[1] Direct discrimination: when one person is treated less favourably than another is, has been, or would be treated in a comparable situation on any of the grounds mentioned in various legal provisions. Indirect discrimination: when an apparently neutral provision, criterion or practice would put persons having a particular protected characteristic (e.g. their religion or belief, disability, age or sexual orientation) at a disadvantage compared with others.
Very well written!! ✨