by Cláudia Moreira, masters student at University of Minho

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The ban on wearing religious symbols, like the hijab or headscarf, the niqab and burka, is nowadays at the centre of controversies over which limits can be legitimately established for religious manifestations. In recent years, there have been many European countries which, given the strong Islamic presence in their territory, have understood that they should find legal solutions to the heated discussions about the use of women’s religious clothing. Belgium was the first European country in 2010 to ban the wearing of the burka in public spaces. It was followed by France, which, even though it had already adopted a law banning the use of religious clothing or symbols in public schools in 2004, based on the State secularity principle, only more recently extended the ban to the use the burka and niqab in public spaces.

The wide discretion that the European Court of Human Rights (ECHR) has been providing to Member States, in cases concerning religious symbols[i] and their usage limitation may, as well asserted Martinez-Tórron[ii], be the result of the ‘fear’ of propagating of radical ideals, which are harmful to European freedom. This fear, however, does not legitimize the adoption, under false aegis of principles, such as justice or equality of measures restricting religious manifestations.

Religious manifestations shall be subject to restrictions, but only if they are prescribed by law and are necessary in a democratic society in the interest of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others (article 9 of the Convention for the Protection of Human Rights and Fundamental Freedoms). However, only restrictions which do not constitute disproportionate and intolerable interference (principle of proportionality) shall be admissible. Therefore, we may conclude that it is possible to restrict the right to religious demonstration, even if this leads to discrimination (direct or indirect, as measured by the criterion of comparability), if that is the only suitable means to guarantee the interests mentioned above. Thus, we will face «justified discrimination».

The cases Achbita against G4S Secure Solutions and Bougnaoui against Micropole Univers, judged by the Justice Court of the European Union (CJEU), created, due to the originality of the situations, a high expectation around their decisions, placing hopes on a possible change of the decision-making. Although the case-law of the European Court of Human Rights confirms the admissibility of the ban of the headscarf use and, as is well known, the CJEU tends to follow in the footsteps of the Court, the truth is that until now none of the decisions was about legal-private relations, therefore, there was no direct precedent. As the Advocates General’s conclusions are not binding, and as it has been noted, the conceptions surrounding religious freedom vary widely within the Union, everything was in the open. Nevertheless, given the political and economic impact that a positive decision on the existence of discrimination in such a sandy area as a private sector, it was more than expected that the CJEU would maintain a diligent and safe position, reiterating the legitimacy of the prohibition.

In Achbita v. G4S Secure Solutions, Samira Achbita, a Muslim woman, worked as a receptionist in the Belgian company G4S Secure Solutions. After three years in the service of the company, she insisted on wearing a headscarf in the workplace and was dismissed on the basis of an internal company norm which prohibited the visible use of religious, political and philosophical signs. Supported by the Center Belge pour l’égalité des chances et la lutte contre le racisme (Belgian Center for Equal opportunities and combating racism), Samira Achbita brought an indemnity action against G4S. However, this action was dismissed, both at first instance and on appeal. The Cour de Cassation de Belgique, asked for CJEU clarification about the prohibition of discrimination based on religion or belief.

In the light of the facts, the CJEU concluded that there is no direct discrimination within the meaning of Article 2 (2) (a) of Directive 2000/78 / EC, since “[the] internal rule at issue in the main proceedings refers to the wearing of visible signs of political, philosophical or religious beliefs and therefore covers any manifestation of such beliefs without distinction”[iii]. The restrictive measure was applied, indiscriminately, to all workers and possible symbols that they displayed; so, the applicant was not in an unfavourable situation and therefore – following the criterion of comparability – there was no direct discrimination. The court also pronounced itself on the possibility of being in front of an indirect discrimination, in case the internal measure entails, in fact, for the people who adhere to a particular religion or belief, a particular disadvantage, stating that it could be justified by the employer’s concern to maintain neutrality in relations with its clients[iv], when the prohibition of the use of the symbols would be the proper means necessary for the purpose pursued. The analysis of the proportionality of the redundancy measure was left to the referring body, with the CJEU proposing that the employee be re-placed in a position that did not require visual contact with clients.

The process Bougnaoui v. Micropole Univers, in turn, has as applicant Asma Bougnaoui, also a Muslim woman, living in France. On 15^th July 2008, the applicant signed an employment contract with Micropole SA, a computer consulting firm, as a design engineer. During the working hours, she wore a headscarf, the so-called Islamic veil, symbol of her faith. In the exercise of the functions of engineer, she found herself in need to travel to Toulouse to meet with one of the company’s clients. During this visit, the client’s team felt “embarrassed” by the use of the veil by the engineer, and requested Micropole SA that, in the future, the situation did not recur. The employer summoned her to an interview prior to possible dismissal, in which was asked, in name of necessary neutrality, that, during the direct contact with the clients the headscarf not be used. Asma Bougnaoui refused to accept to the request, being dismissed. She challenged her dismissal before the French courts, claiming that the dismissal constituted a discriminatory measure on the grounds of her religious beliefs. However, they considered the dismissal to be justified. Dissatisfied, the applicant lodged an appeal before the referring court, which, having doubts as to the interpretation of European Union law sent it back to the CJEU.

Mostly, it was on the criterion of comparability that based the divergent opinions of the Advocates General of both cases was founded. According to Advocate General Sharpston, based on the definition of direct discrimination given in Article 2 (2) (a) of Directive 2000/78/EC, there is direct discrimination against the employee, once she is given unfavourable treatment when compared to what would be attributed to another worker in a similar situation. The decision of the employer was based on the complaint of a single client, addressed to a religious symbol, in particular,  which leads to the belief that if any other collaborator, bearer of any other religious symbol, had travelled to the same premises and collaborated with the same team as Asma Bougnaoui, there would be a possibility that they would not feel “embarassed” by the presence of another symbol and therefore no restriction of freedom of manifestation would be applied to the other workers.

Discrimination cannot be justified, since the element in question is not absolutely necessary for the exercise of the professional activity in question, nor is there any other basis for considering the performance of the proportional company. Moreover, the CJEU itself comes to this conclusion stating that “[the] Article 4(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that the willingness of an employer to take into account the wishes of a customer no longer to have the services of that employer provided by a worker wearing an Islamic headscarf cannot be considered a genuine and determining occupational requirement within the meaning of that provision”[v]. However, a clear decision about the existence (or not) of a difference in treatment directly based on religion or belief is eluded, in this case.

Doing a general analysis, it is understandable that, at first, decisions such as the Achbita case may be considered to be acceptable. The prohibition, when covering manifestations of any religious, political or philosophical beliefs, generates a situation of apparent equality. The crux of the matter, however, lies in the fact that an equal prohibition of various manifestations of belief does not mean that the adopted policy is no longer discriminatory and does not infringe on the fundamental freedoms of the citizens involved. Besides that, after examining the decisions, these end, in a way, by entering a collision course. In the decision of the Bougnaoui case, although it does not find a solution to the situation in particular, the Court states that, in the abstract, the desire for a client will not be sufficient to justify the prohibitive attitude of the employer. But in Achbita judgment, it states that the concern of the employer to maintain neutrality in relationships with customers can lead to a situation of “justified discrimination”. This means, indirectly, that it is the customers wishes that justify the establishment of a neutral policy.

It is disappointing that the need to maintain the politically correct discourse and the “fear” of intervening in the private sector prevent courts such as the CJEU from taking a concrete and definitive position on issues of blatant violation of fundamental rights. Basically, the CJEU, with its inaccuracies does nothing more than keep the “door” open to future discrimination and consequent litigation of a similar nature.

 

[i] See the decisions of cases Leyla Sahin v. Turkey, Case No. 44774/98, of 10 November 2005 and Dogru v. France, Case No. 27058/05, of December 4, 2008.

[ii]  Cf. MARTÍNEZ-TÓRRON, Javier, La cuestión del velo islâmico en la jurisprudência de Estrasburgo” in ROBBERS, Gerhard (coord.), Derecho y Religión, Vol. IV, 1st edition, 2009, pp. 87-109.

[iii] Judgment of the European Union Court of Justice, 14 March 2017, Case C-157/15, Samira Achbita c. G4S Secure Solutions, recital 30.

[iv] Judgment of the EU Court of Justice, 14 March 2017, Case C-157/15, Samira Achbita c. G4S Secure Solutions, recital 34.

[v] Judgment of the EU Court of Justice, 14 March 2017, Case C-188/15, Asma Bougnaoui v. Micropole SA, recital 42.

Picture credits: Niquab shop  by Neil Hester.