22 October 2021
The Court of Justice of the European Union (CJEU) sparked controversy with its recent judgment passed down in IX v Wabe eV and MH Müller Handels GmbH v MJ. This case required the CJEU to again consider the right to freedom of religion. It ruled that employers can ban workers from observing religious symbols, including headscarves, to maintain a neutral image in front of its customers.
Case Background
This ruling was brought by two Muslim women in Germany who were suspended from their jobs because of wearing a headscarf. IX and MJ, were employed in companies governed by German law as a special needs caregiver and a sales assistant respectively. They both wore the Islamic headscarf at their workplaces. The employers held the view that wearing a headscarf for religious purposes did not correspond to the policy of political, philosophical, and religious neutrality pursued with regard to parents, children, and third parties, and asked the women to remove their headscarf and suspended them from their duties on their refusal to do so. MJ’s employer, MH Müller Handels GmbH, particularly instructed her to “attend her workplace without conspicuous, large-sized signs of any political, philosophical or religious beliefs.”
IX and MJ brought actions before the Arbeitsgericht Hamburg (Hamburg Labour Court, Germany) and the Bundesarbeitsgericht (Federal Labour Court, Germany), respectively. The courts referred the questions to the CJEU concerning the interpretation of Directive 2000/78. This directive establishes a general framework for equal treatment in employment and occupation.
Legal Analysis
The CJEU’s judgment focused on four points:
First, it examined whether prohibiting workers from wearing any visible religious, political or philosophical symbols in the workplace would be considered as direct discrimination as prohibited by Directive 2000/78. The Court highlighted that a rule does not constitute direct discrimination if it covers any manifestation of beliefs without any distinction and holds all its employees to the same standard. The Court considered that this finding is not called into question by the fact that some workers observe religious precepts requiring certain clothing to be worn such as the Islamic headscarf. The Court further clarified that the rule at issue appears to have been applied in a general and undifferentiated way, since the employer also required an employee wearing a religious cross to remove that sign in addition to employees removing the headscarf. Therefore, this policy would not constitute direct discrimination on the grounds of religion or belief.
Second, the Court analysed whether a difference of treatment indirectly based on religion or belief may be justified by the employer’s desire to maintain a neutral impression to its customers, to take account of their legitimate wishes. The Court noted that an employer’s desire to display to its customers a policy of political, philosophical, or religious neutrality may be regarded as a legitimate aim. However, the desire itself is insufficient to objectively justify a difference in treatment indirectly based on religion or belief. The elements required to justify the difference are the rights and legitimate wishes of customers, more specifically, for educational purposes the parents’ wish to have their children supervised by persons who do not manifest their religion or belief when they are in contact with the children.’ In assessing this, the employer must have adduced evidence that in the absence of the policy of neutrality, its freedom to conduct business would be undermined. The difference in treatment must therefore be appropriate for the purpose to that the policy of neutrality is properly applied. Further, it must be applied in a consistent and systematic manner and be limited to what is strictly necessary having regard to the actual scale and severity of the adverse consequences that the employer is seeking to avoid.
Third, the Court considered whether all visible forms of expression of political, philosophical, or religious beliefs should be prohibited or only conspicuous, large-sized signs. It noted that the latter, a limited prohibition on large signs, will have a greater effect on people with beliefs which require the wearing of a large-sized sign, such as a headscarf. As a result, some workers could be potentially treated less favourably which would amount to direct discrimination. Therefore, the policy can only be effective when absolutely no visible manifestation of religion or belief is allowed.
Fourth, the Court held that the national provisions protecting the freedom of religion could be considered as favourable provisions in assessing the appropriateness of difference of treatment. Therefore, this ensures that if various fundamental rights are at issue, the assessment of proportionality is carried out in accordance with the need to reconcile the requirements of the protection of the rights at issue, striking a fair balance between them. It concluded that Directive 2000/78 did not carry out this necessary reconciliation between the freedom of thought, conscience and religion and the legitimate aims that may be invoked in order to justify unequal treatment and the EU legislature allowed each Member State a margin of discretion in achieving that reconciliation.
Comment
For years, religious symbols, particularly the headscarf, have been a highly divisive issue across Europe. This judgment was met with criticism, particularly by the Muslim community.
The European Network Against Racism expressed its view on Twitter, stating that the latest ruling would
lead to justifying the exclusion of Muslim women, who are increasingly portrayed as dangerous for Europe, in the collective narrative.
Article 9 of the European Convention on Human Rights (ECHR) protects the right to manifest one’s religion and beliefs. Article 9 is often relied upon in conjunction with Article 14 of the ECHR, which prohibits discrimination based on, among other things, religion and opinions.
In 2013, the European Court of Human Rights (ECtHR) delivered its judgment on Article 9 and 14 in the case of Eweida and Others v. the United Kingdom. This case involved four applicants who believed that they had suffered unlawful discrimination at the hands of their employers on grounds of religious beliefs. In particular, one applicant, Ms Eweida, was a Christian who believed that her faith required her to wear a small cross on a chain visible around her neck. She was employed by British Airways (BA) in a customer service role. She was told that the cross was a breach of the BA’s uniform policy, and she was sent home and offered a non-customer facing role instead.
The ECtHR accepted that the right to hold religious beliefs under Article 9(1) is absolute and no interference with it can be justified. However, it noted that the freedom to manifest one’s belief is qualified. The Court noted that a person’s manifestation of their belief may impact others and that it may be limited if such limitation is “necessary in a democratic society” including “for the protection of the rights and freedoms of others”. However, this must be ‘proportionately’ balanced since the state has a positive obligation under Article 9(2). It was held that the UK had in fact violated Ms Eweida’s right under Article 9 as a fair balance had not been struck. On one side was Ms Eweida’s desire to manifest her religious belief which is a fundamental right: “because a healthy democratic society needs to tolerate and sustain pluralism and diversity; but also because of the value to an individual who has made religion a central tenet of his or her life to be able to communicate that belief to others.” On the other side was the employer’s wish to project a certain corporate image. The Court held that, while this aim was undoubtedly legitimate, the UK courts accorded it too much weight. Ms Eweida’s cross was discreet and could not have detracted from her professional appearance. There was no evidence that the wearing of other, previously authorised, items of religious clothing, such as turbans and hijabs, by other employees, had any negative impact on the company’s brand or image. Therefore, where there was no evidence of any real encroachment on the interests of others, the domestic authorities failed sufficiently to protect the first applicant’s right to manifest her religion, in breach of the positive obligation under Article 9.
This particular ruling relates to the similar facts of IX v Wabe eV and MH Müller Handels GmbH v MJ. Therefore, the judgment delivered by the CJEU appears to be inconsistent with the ECtHR’s ruling on religious symbols in the workplace: the CJEU has failed to strike a balance and heavily favours the employer’s desire for neutrality.
The CJEU also failed to make a comment on the issue of prejudice. In the case of Chez v Komisia the Court had previously considered the fact that a practice based on stereotypes and prejudice should be taken into account when deciding whether that practice constitutes discrimination. In this judgment, the question arises whether the employer’s wish to have a strict neutrality policy is not based on the prejudicial views of customers towards Muslims and specifically towards Muslim women observing the headscarf. Human Rights Watch noted that the protection of religious freedom – for Muslim women in particular – was dented by this judgment which precisely discriminates against people who wear a religious dress. “Neutrality” has been an excuse used to justify similar bans previously, opening doors to widespread employment discrimination. While the Court noted that these restrictions to prohibit religious symbols apply equally to all expressions of religion or belief and are not discriminatory, it is obvious to the ordinary person that these target individuals from certain religious groups and mostly impact the Muslim veil and headscarf, Jewish kippah and the Sikh Turban. Previously, bans on religious clothing and symbols in Germany led to Muslim women sacrificing their teaching careers. A ban on face veils in France led to fines for approximately 600 Muslim women and France’s contentious 2004 law banning the wearing of headscarves in schools kept Muslim girls from finishing school.
Maryam H’madoun at the Open Society Justice Initiative has said previously that this
will lead to Muslim women being discriminated in the workplace, but also Jewish men who wear kippas, Sikh men who wear turbans, people who wear crosses. It affects all of them.
While the judgment on religious discrimination at work deserves criticism, there was a single advancement noted with regards to the economic harm test. If an employer restricts the worker’s freedom of religion by imposing neutrality rules, the employer must prove economic harm as part of the justification and proportionality test for indirect discrimination. This is a development in comparison to the previous caselaw including Achbita & Anor v G4S Secure Solutions and Bougnaoui and ADDH v Micropole SA. However, while the CJEU imposed a higher burden of proof on the employer regarding the justification of neutrality rules, it does not negate the potential consequences this judgment will have in fueling workplace discrimination and forcing individuals to make a sacrifice between their religious practices and employment. Overall, this judgment fails to find a way to balance the individual’s rights against that of an employer’s policy of neutrality and does not provide reasoned guidance for how those interests could be weighed against each other in law.
Tehreem Sultan is currently studying for the Bar Course.
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