The Court of Justice of the European Union (CJEU) has ruled that it is not direct discrimination on grounds of religion for an employer to bar workers from wearing religious clothing. This illogical judgment, in the cases brought by Samira Achbita of Belgium and Asma Bougnaoui of France, is driven by political considerations in a minority of EU states and threatens the coherence of European Union equality law. It pushes national law-makers and judges to choose whether to apply this weak approach, or to ensure effective protection of religious minorities and to challenge Islamophobia.
This ruling is the first time the highest court of the EU has considered “discrimination on the grounds of religion.” The court rightly recognized that “religion” includes holding a religious belief and how that belief is manifested (para 28). The Court also accepted that an employer’s rule barring manifestation of religion could be more likely to affect particular religions (para 34). Based on this view, the court said that a rule could be indirect discrimination, though it held this could be justified by employers who want to give customers the impression that they do not employ religiously observant staff.
But the Court of Justice accepted the fundamental claim of the Belgian employer that a ban on wearing religious clothing is “neutral”—and is not direct discrimination. The court said that a rule which covers “any manifestation” of belief does not discriminate on grounds of religion.
The Court completely fails to reconcile this claim with its acceptance that “religion” includes a person’s choice of manifestation of religion. As the court’s Advocate-General Eleanor Sharpston argued, an employee who had not chosen to show their religion through clothing is treated differently from one who has (para 88 of her Opinion). A rule that expects every person to have the same outward appearance is not neutral: it deliberately discriminates against people because they are visibly religious.
Across Europe, Muslim women wear the headscarf as private and public employees, working for employers who consider themselves neutral. While the G4S in Belgium dismissed Ms Achbita from her job as a receptionist for wearing a headscarf, the British G4S employed women wearing headscarves as security at high profile events like the London Olympics. Scotland’s police force incorporates the headscarf in its uniform.
But in a few countries, especially Belgium and France, “headscarf bans” are demanded by right-wing politicians to scapegoat Muslims. Dressing up discrimination as “neutrality” and claiming they only wish to ban expressions of religion, they have sought to shut out from public life those Muslim women who choose to wear the headscarf, and to bully employers into following this line. Many employers in these countries continue equal treatment, welcoming workers from diverse religious backgrounds, others have responded to pressure. While these countries are few within the European Union, their concerns have had peculiar effect on the court in this case.
The CJEU interprets EU equality law—but it does not prevent each Member State securing more effective protection. So this judgment takes the debate on laws to the pan-European level. Will activists, law-makers and judges allow employers to refuse to employ people because they wear religious clothes: not only Muslim women, but, for example, Sikh and Jewish men. We can expect to see calls for national legislators to make clear—at national level—that such rules are prohibited discrimination. Unlike the Court of Justice, many others will not want to legitimize discrimination against religiously observant employees.
By this high profile ruling which would close the middle ground, the Court polarizes legal and political debates. It politicises employers’ dress codes, encouraging stark contrasts between employers who ban religious clothing and those who do not discriminate. Racists and Islamophobes will be emboldened to claim that diverse work-places are “not neutral,” protesting the employment of visibly religious staff.
The court also takes a contradictory approach to the importance of customer opinions. It claims that a discriminatory code barring religious clothing may be more justifiable for customer-facing staff (Achbita para 38), yet reasons that customer preference is not a ground for an employer to require an employee to change their dress (Bougnaoui para 40). In the court’s view it is “legitimate” for an employer to “project an image of neutrality” by limiting customer-facing staff to those whose religious beliefs are invisible, while still employing hidden staff who wear headscarves and turbans. These contortions underline the incoherence of the court’s approach.
The judgment also poses a threat to the wider protection of equality law. If it is “neutral” to bar manifestation of religion, is it legitimate to bar manifestation of ethnicity or sexuality, for example, through language or clothing?
The Court of Justice has made serious mistakes before. In the 2003 Akrich judgment, the court excluded irregular migrants from the protection of family unity with EU citizens. Five years later, the court explicitly reversed that judgment, accepting the contrary arguments in the Metock case.
The European Union is founded on the values of equality and pluralism. As the EU faces existential threats, these cases provided the court a great opportunity to make a clear public statement that in Europe, all are equal, including the religious and the non-religious. The court could—like Advocate-General Sharpston—have affirmed a Europe of diversity, in which all that matters to an employer is the quality of the work, not the beliefs of the employee. Sadly, we will need to wait some time for Muslim women to enjoy full participation in workplace, across Europe. Until then, national courts and lawmakers must use their legal powers to prevent the legitimation of Islamophobia in the workplace.