Op-Ed: “Missed opportunities: the Court of Justice fails to fix the unprincipled mess on religious garb in the workplace” by Elijah Granet
In Joined Cases IX v WABE & MH Müller Handels v MJ (C-804/18 and C-341/19), the Court of Justice had the chance to cure the defects and ambiguities in its previous case law (Achbita v G4S Secure Solutions, C-157/15; and Bougnaoui v Micropole, C-188/15) on when EU law allows an employer to fire someone (or, equally, refuse to hire someone) for wearing a visible religious symbol. The referring German courts in the two cases served up a batch of interesting questions which gave the Grand Chamber the opportunity, if it so chose, to entirely revise the law here. The Court even had the advantage of two Advocate Generals’ Opinions – from the former Advocate General Eleanor Sharpston QC and her successor, Advocate General Rantos. Yet, the Court instead elected, in a classic Grand Chamber fudge, to deliver a relatively short judgment which kept the status quo relatively intact. The result is that EU law on the right to manifest one’s religion or belief is left looking like a feeble, unprincipled, and pointless supplement to national law.
A useful, if dismal, instruction on the deficit of judicial courage at the Court is provided by examining the facts of the cases, and the Court’s response. In the first case, ‘IX’, a female Muslim employee of the day care chain WABE, returned from maternity leave to find that her employer had decided that its employees were to be forbidden from wearing visible religious symbols (including a cross necklace or a hijab). The ostensible basis for this policy – quoted in paragraph 25 – was that a child seeing a teacher wearing, say, a kippah, might interfere with the child’s own free religious development. WABE characterised (paragraph 26) the wearing of any religious garment as a ‘deliberate choice’ to act ‘contrary to the requirement of neutrality’. In the other case, ‘MJ’, worked in a chemist’s shop (MH) which banned ‘large scale’ religious symbols, with the ostensible legitimate aim of using forced neutrality to prevent conflicts between employees with different religious views. The distinction between large- and small-scale religious symbols, which would appear to allow small cross necklaces but not hijabs, is, perhaps deliberately, very confusing. Neither of these fact-patterns, however, is so distinct from previous cases both before the Court and at Strasbourg as to prevent a sense of legal déjà-vu.
The first question referred (from IX v WABE) was perhaps the simplest: is prohibiting all religious signs a form of direct discrimination under Directive 2000/78 (‘the Directive’)? The Court begins its analysis with the customary paean to freedom of religion’s importance in the EU legal order, before proceeding to demonstrate that it has very little understanding of religion per se at paragraphs 52–54. The Court, relying on AG Rantos’s Opinion, simply refuses to budge from its stubborn view that wearing a cross necklace and, say, a Sikh turban, are identical forms of religious expression, and their repression causes mere ‘particular inconvenience’ for the turban wearer and, by implication, merely mild inconvenience to the necklace wearer. Thus, there is no direct discrimination because the policy affects all employees.
This conclusion displays almost wilful blindness to the fact that the necklace wearer is merely manifesting her belief, whereas the turban wearer is practising his belief. There is a material difference between the effect on an employee who likes to wear a cross as an expression of their Christian faith, and an employee who is mandated, as a direct condition of being a good member of her religious tradition, to adhere to God’s injunction unto the faithful. It is also important to recall the obvious but seemingly overlooked fact that an employee wearing a cross necklace can simply tuck it under her shirt, and thus, continue wearing the same religious article without interruption, while a hijabi cannot clandestinely continue to adhere to her religion’s dictates. It is here that, both in Luxembourg and Strasbourg, the forum internum/forum externum distinction breaks down, and reveals its Protestant heritage; for many faiths, the wearing of a religious garment is not simply a ‘manifestation’ of a private belief, but a fundamental aspect of that belief.
Thus, a policy of ‘general application’ to mandate neutrality will result in workers from faiths which do not mandate external marks of the faith keeping their jobs, albeit perhaps leaving them disgruntled, and workers from faiths which do mandate external marks quitting or being dismissed (as happened in the two cases at issue). Is losing one’s job, or having to betray one’s faith, really just a particular inconvenience? In constructing the proportionality analysis of discrimination associated with any ban, the Court has to understand the impact a practice has on a particular believer, and for that to happen, the court has to actually make some effort to understand that believer’s faith. In this case, the Court instead simply shoved the claimants into a standard forum internum/externum sandwich and called it a day.
Here, one can only sigh that Ms Sharpston QC’s tenure had to be a casualty of Brexit; her Shadow Opinion demonstrated a thorough understanding of these aspects of religious faith and of law, as well as how easily majorities can misinterpret the religious practices of minorities. By contrast, the Court and AG Rantos seemed to have no inclination to think of what being asked to break God’s law by removing a hijab might represent as a burden on an individual believer.
This insouciance was seen again in the answer to the second point considered (also in IX v WABE): could the indirect discrimination (given that WABE’s ‘neutral’ policy appeared to have only affected hijabi women) clearly present be justified by an employer’s legitimate and necessary aim of creating religious and political neutrality?
The referring court had mentioned the gendered aspects of this indirect discrimination, but the Court was quick to dismiss this, as sex discrimination is not a ground protected by the Directive. This disregards the fact that recitals (2–3) of the Directive clearly indicate that the legislature intended the Directive’s provisions to be read as an expression of the principle of EU law (both as a general principle of law and as a mandate in the Treaties) of the equal treatment of men and women. In light of the legislature’s express intent, discrimination which is indirectly harmful both to religious liberty and to gender equality should surely call for a heightened burden on the employer to demonstrate the legitimacy and proportionality of their aim. Instead, the Court dismissed the gendered dimension out of hand (and skipped from recital (1) to recital (4) when quoting the Directive) and had no regard to gender.
The Court then showed, once again, an almost total deference to WABE in accepting tout court its claim that its policy of enforced ‘religious neutrality’ was objectively justified as necessary and appropriate. Had the Court simply read the documentation it produced, it would have spotted, as Ms Sharpston QC did, that the Hamburg guidance cited by WABE explicitly notes the importance that children, as part of their free religious development, encounter members of other faiths and see religious views different to their own. In that sense, allowing employees to visibly be of different faiths is precisely in accordance with the aims to which WABE claimed to subscribe. Given this, how could a complete and total ban on any child seeing any religious symbol possibly be appropriate? The Court says that the employer’s evidence of adverse affects on their business or customers deserves ‘particular relevance’, but relevance does not mean uncritical acceptance. There is something particularly sinister in the claim that children would be negatively influenced in their religious development by viewing a teacher in a hijab; is the implication that the mere act of wearing a hijab is a form of Islamic propaganda designed to proselytise young children at the school? Granted, there is Strasbourg case law saying precisely this (see Dahlab v Switzerland, no 42393/98, ECtHR 15 Feb 2001, quoted by the Court in paragraph 48), but as Ms Sharpston QC notes, there are reasons to think that this precedent has a very limited application in 2021.
It is now left to the referring court to determine if the employer’s pleaded adverse consequences (or customers’ ‘legitimate wishes’) render a total ban on religious symbols as a necessary and proportionate measure. This, in turn, raises the pressing legal question of when, say, Islamophobic customers are sufficiently pig-headed in their bigotry as to allow an employer to ban the hijab. How many green-ink letters from outraged customers must a business show to claim that it will suffer excessive adverse consequences unless it fires or transfers out of front-facing roles all its hijabi employees? Surely, instead of allowing businesses to cite their customers’ willingness to use their wallets to express their prejudice, it would be easier to ban all businesses from religious discrimination, thus leaving this unpleasant brigade with no choice but to endure the terrible spectacle of having to live in the same society as their fellow citizens? Instead, businesses will now be permitted to segregate their hijabi employees into non-customer facing roles, or, if the employee’s qualifications cannot allow for reassignment, simply dismiss them. When the ECtHR upheld the French ban on the full-face veil in public spaces, the justification given was deference to the French legitimate aim of vivre ensemble (living together) (SAS v France App no. 43835/11, 1 July 2014). Yet, through this ruling, the Court has reinforced a tacit economic segregation (living apart, if you will), shutting out religious Muslim women from joining their compatriots of all religions and none in having a free and competitive access to the labour market. It is difficult to fathom how the interests of integration and social cohesion will be served by punishing members of religious minorities who are seeking to engage or to continue engaging in mainstream work in secular fields. It is precisely for this reason that the EU legislature enacted the Directive as an instrument to further integration and social cohesion by means of work (see recital (11).
The latter two points analysed by the Court brought two small, joyless victories for common sense. First, the Court confirmed that MH’s ban on small-scale religious symbols was incompatible with the stated ‘legitimate’ aim of preventing religious conflicts in the workplace; yet, this simply raises the spectre that the company may bring in a total ban, and people with religious wristbands or necklaces can tuck them under their attire, while someone wearing a kippah is liable to termination. It also is difficult to see how an employer could ever claim banning religious symbols in the workplace was a proportionate way to stop religious conflict amongst employees; it is absurd to say that manifestations of religious belief are, by their nature, incitements to conflict. Yet, the Court has licensed just this. Finally, the Court deigned to let Member States provide a more favourable protection for religious expression under their national law. This was somewhat inevitable, as the alternative (Member States are required to let employers dismiss employees for wearing religious symbols) was too absurd even for the Court.
This leaves the problem of: what to make of this predictable, muddled, disappointing judgment? The Grand Chamber, as is inevitable when 27 judges have to agree to put their names to the opinion, produced a compromise with little courage attached, taking the politically safer route in bolstering, rather than revising, the equally disappointing decision in G4S. The Court again showed no interest in examining, as Ms Sharpston QC did, the impact and dimensions of strict religious neutrality policies, and carried out only a cursory discrimination analysis. This is although the Directive and the Charter both indicate that EU law is intended to provide a very high level of protection against religious discrimination. Nor did the Court show the proper level of scrutiny towards the situations in which employers should be considered to have legitimate justifications; it is submitted that, in any system of laws which protects employee’s freedom of religion, there should be much higher thresholds of scrutiny for any such stated reasons. Now, national courts will, using this decision as a framework, likely show a similar deference to the employers’ wishes, and allow employers to cite their customer’s unwillingness to patronise a business with visibly religious workers as a reason to impose religious neutrality. Meanwhile, the Court has also hurt the EU’s labour market, because the baseline level of protection set by EU law is now significantly lower than the additional protection provided by some Member States. This limits the ability of conspicuously religious EU citizens to take advantage of the free movement of labour; a German Muslim woman may now be significantly more unlikely to seek a job in, say, France if the latter country does not have the level of additional protection.
Worst of all, the Court, has once again demonstrated it has little to no understanding of minority religions. After the recent Centraal Israëlitisch Consistorie van België case (C-336/19), where the Court appeared to indicate that it believed that kosher slaughter could still be carried out with pre-stunning, the Court has here suggested that it believes that the fact that some religions lead followers to believe they are mandated to wear a religious garment is essentially irrelevant in a discrimination analysis. Ms Sharpston QC, who by contrast spent paragraphs discussing religious attire and the appearance of religious customs to majorities, demonstrates how essential a strong understanding of religion is to the development of a jurisprudence of religion.
The Court has now, over a series of recent cases in the past 5 years, declined to accord minority faiths’ practices a high level of protection against countervailing rights and considerations. This is of little benefit to anyone; beyond the immediate and terrible impact on religious minorities who may now lose their job for, in effect, refusing to renounce their faith, it also hurts as all by impeding the very social integration the Directive and the Treaties seek to create through equal treatment. None of this is to say that there are not situations where an employer’s legitimate interests legally outweigh equal treatment; there obviously explicitly are under the Directive, but given the importance EU primary and secondary legislation places on freedom of religion, one would think those reasons would have to be noticeably better than ‘we do not want our employees of different religions fighting’ to be regarded as legitimate. The Court’s willingness to allow employers to fire hijabis because, say, children might be seduced over to Islam (following the ill-chosen path taken by Strasbourg) suggests once again that it is unwilling or unable to give EU legislation designed to secure the freedom of religion the broad and expansive reading it deserves. This, in turn, leaves EU anti-discrimination legislation looking like a pointless exercise in platitudes.
Elijah Granet is a Bar Vocational Course student at the City Law School (University of London), as well as an external PhD candidate at Universität Bayreuth in Germany.