More is less? Failing to see an instance of direct discrimination

In the course of examining the internal rule that required all workers to refrain from wearing signs expressing their political, philosophical or religious beliefs, the European Court of Justice found that it treated all workers the same way by requiring them to dress neutrally (§30). As it paid more specific attention to how the rule precipitated Achbita’s dismissal, it found that it had not been applied to her any differently than it would have been to any other worker. The Court thus concluded that there was no instance of direct discrimination: ‘it must be concluded that an internal rule such as that at issue in the main proceedings does not introduce a difference of treatment that is directly based on religion or belief, for the purposes of Article 2(2)(a) of Directive 2000/78’ (§32).

In a classic levelling down of the very concept of non-discrimination,Footnote ⁴ the Court here neutralises much of the promise of Directive 2000/78, potentially favouring outcomes that are at odds with EU anti-discrimination law’s very raisons d’être. The Court puts forth a reasoning by which the fact that the ban adopted by G4S’s work council concerned all convictions (religious, political or philosophical) made it discrimination-proof: it could not be claimed that religious convictions were subjected to a harsher regime than political or philosophical ones. This is, however, hardly a convincing line of reasoning. As has already been noted, the Court’s reasoning rests on a debatable if not flawed choice of comparator; a situation that entails discrimination on the grounds of religious beliefs should not only be assessed by comparing it to the treatment of persons expressing other beliefs, but also to persons expressing no belief. The Court insists that ‘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’ and that ‘the rule must, therefore, be regarded as treating all workers of the undertaking in the same way by requiring them, in a general and undifferentiated way, inter alia, to dress neutrally, which precludes the wearing of such signs’ (§30). But this is akin to saying that, say, since all disabled workers are subjected to any given restriction of their rights (for instance, different treatment in the calculation of their paid work hours based on the fact that disabled workers need more time to reach their workstation within the work premises), none is in fact discriminated against.Footnote ⁵ The rationale here is really perverse, in the sense that it amounts to considering that if you discriminate against all members of a group, you actually no longer are discriminating at all. Anti-discrimination law is, in other words, neutralisedFootnote ⁶ in its very capacity to cover certain realities and social practices it was initially set up to help combat. Some authors even consider that discrimination has now in fact been legitimised; the Court has provided employers with a ‘recipe for discrimination of their employees on the basis of their religious or other beliefs’.Footnote ⁷

Neutrality policies as marketing and the demise of the right to non-discrimination in the workplace

Once it ruled that neutrality policies could formally be put in place by private undertakings without causing direct discrimination, the European Court of Justice examined whether the concept of indirect discrimination could nonetheless apply. Recalling the definition of indirect discrimination in the sense of Directive 2000/78, the Court explained that indirect discrimination would ensue if the neutrality policy resulted in particular disadvantage for persons adhering to a particular religion or belief.Footnote ⁸ It further insisted that such disadvantage would, however, not qualify as indirect discrimination if the policy pursued a ‘legitimate aim’ by means ‘appropriate and necessary’. It is argued here that, well beyond the particulars of either the Bougnaoui or Achbita cases, the Court’s interpretation of these notions could potentially turn the very concept of indirect discrimination vis-à-vis any kind of neutrality policy into a paper tiger.Footnote ⁹ This is particularly true since the Court chose to rule that an employer’s ‘desire to display, in relation with both public and private sector customers, a policy of political, philosophical and religious neutrality’ is a priori legitimate (§37). The Court here refers to Article 16 of the EU Charter of Fundamental Rights, insisting that the ‘right to conduct a business’ encompasses an employer’s right to impose a policy of strict neutrality. The Court thus expressly condones possible choices for neutrality in so far as they have to do with private undertakings’ self-defined image – and consequently, marketing strategy.Footnote ¹⁰ Such a choice ‘must be considered legitimate […] notably where only those workers who are required to come into contact with customers’ – i.e. those who convey the company’s image – are subjected to the neutrality requirement.

This section of the Court’s ruling is of utmost importance from both an anti-discrimination law and human rights perspective. In its consideration of the referrals made by the French and Belgian courts, the Court read Directive 2000/78 in light of the Charter, but chose to do so only to interpret the ‘legitimate aim’ that would allow a company to indirectly discriminate, and only with respect to the fundamental rights of private undertakings (in particular, their freedom to conduct a business) rather than those of individuals. As a result, the ‘fundamental rights’ perspective is hardly relevant to the rulings, which remain essentially silent on individuals’ rights to spiritual integrity, religious freedom, autonomy, and dignity. As far as anti-discrimination law is concerned, the Court’s reasoning in the Achbita case makes the scope and strength of EU anti-discrimination law subordinate to marketing considerations and the freedom to conduct a business. Indeed, confirmation that a desire to display an image of neutrality is to be considered a legitimate aim for the differential treatment of workers under Article 2§2b) of the Directive reverses the hierarchy between the principle of the Directive’s Article 2 (a principle of non-discrimination) and exceptions thereto (except if/when the discrimination – differential treatment – pursues a legitimate aim). The very fact of enunciating that, as a general rule (i.e. as a matter of principle) a neutrality policy ought to be considered legitimate regardless of the particular circumstances, settings, impact etc., potentially reverses the relationship between principle and exception. In fact, one might now wonder: what prevents private undertakings from reading this instrumental part of the Achbita ruling as allowing them to require and implement policies of neutrality as a matter of free enterprise – except if and when those policies would appear to be inappropriate or unnecessary and excessive?

Alongside the requirement that they pursue a legitimate aim, neutral provisions, criteria or practices must thus also appear to be appropriate and necessary, lest they qualify as forms of indirect discrimination that place persons who adhere to a particular religion or belief at a disadvantage when compared with other persons. But will such requirements effectively manage to contain the scope of the ruling? Should they be understood to mean that not all such policies are to be considered admissible under EU anti-discrimination law? Although some scholars express this view,Footnote ¹¹ it remains essentially unclear as the very definition given by the Court – of both these additional hurdles containing the concept of indirect discrimination – also remains fuzzy and imprecise.

As to the condition of appropriateness, the Court rules that internal rules and policies that require neutrality of convictions can constitute ‘appropriate means’ towards a legitimate aim provided the policy is pursued in a ‘consistent and systematic’ manner (§40). The precise meaning of such criteria remains, however, imprecise. In the Achbita case, the Court established that application of the neutrality policy – to all workers in contact with customers, for all convictions (religious but also philosophical and political) – was to be interpreted, even prior to its formalisation in the internal rules of the company, as an indication that it was indeed a ‘consistent and systematic’ policy. But other cases will undoubtedly arise that question the meaning of these criteria. For instance, what about supermarkets and food chains that choose to sell halal, kosher or otherwise religiously vetted products: would it be ‘consistent and systematic’ for such undertakings to simultaneously require religious neutrality from their personnel? Would it be ‘consistent and systematic’ to offer diversity to customers while denying the expression thereof to the workforce? Arguably, both the choice of what one sells and who interacts with customers for the purposes of selling it can be framed as pertaining to a business’s ‘image’.

As to the condition of necessity, the European Court of Justice insists that as long as the neutrality policy covers only those workers who interact with customers, it is to be deemed necessary (§42). Two observations can be made. First, the latter criterion, that can impede application of the qualification of indirect discrimination, is somewhat tautological with respect to the first. The reasoning of the Court does indeed amount to saying that a policy of neutrality must be considered to pursue a legitimate aim if and when it is necessary to require neutrality from workers to convey a policy of neutrality. In other words, the condition of ‘necessity’ and that of the ‘legitimate aim’ coincide in the Court’s reasoning. Second, it remains – again – a rather fuzzy criterion; a great amount of leeway is left for national judicial determinations of which categories of workers are considered to ‘interact with customers’: are these only the front desk personnel who effectively represent the company, or should they include janitors who operate on premises that are accessible to customers? Is it even possible to identify categories of workers who never come in contact with a company’s customers? In fact, the insistence by many companies that technical, sanitary or logistical personnel wear uniforms could be read as an indication that they do consider their companies to be represented by those personnel categories. At any rate, even if it were the case that certain worker categories never interact with customers and therefore would need to be exempted from a requirement of neutrality since they do not convey the company’s image, one wonders: would such an understanding of the Court’s position not lead to ‘closeting’ workers who wish to express their convictions (religious or otherwise) in back-office jobsFootnote ¹² – and would it encourage employers to conceal any diversity that might be present in their workforce?

‘Religion’ under anti-discrimination law

Remarkably, the 2017 rulings are the first by the European Court of Justice that deal with issues of religious discrimination. The comparably small number of judicial interpretations of racial discrimination under Directive 2000/43Footnote ¹⁴ reminds us that social reality must not be confused with litigated reality. We should indeed wonder why there has been such a limited amount of litigation. Does this testify to the efficiency of national mechanisms – judicial, as well as those that are offered by non-judicial ‘Equality’ bodies? Or does it rather hint at broader issues: hindered access to legal remedies for victims of discrimination, or possibly even a more general failure of the goal of anti-discrimination to appear valuable and pertinent to the very groups it seeks to protect most?

At any rate, these pioneering interpretations of the Directive were impatiently awaited if only because of a number of expressions of doubt, scholarly opinions included, as to the relevance of anti-discrimination law to religion. In particular, several authors have expressed the view that, since religion is not an inalterable or immutable feature of one’s identity, it cannot easily seek shelter under the protective umbrella of anti-discrimination law.Footnote ¹⁵ In fact, this view surfaces in the opinion of Advocate General Kokott in the Belgian case. She considers that ‘unlike sex, skin color, ethnic origin, sexual orientation, age or a person’s disability, the practice of religion is not so much an unalterable fact as an aspect of an individual’s private life, and one, moreover, over which the employee concerned can choose to exert an influence. While an employee cannot “leave” his sex, skin color, ethnicity, sexual orientation, age or disability “at the door” upon entering his employer’s premises, he may be expected to moderate the exercise of his religion in the workplace, be this in relation to religious practices, religiously motivated behavior or (as in the present case) his clothing’Footnote ¹⁶ .

Such reasoning of course raises many questions. First, because it suggests that all elements of identity that are ‘chosen’ by individuals could be considered to fall outside the scope of protection granted by anti-discrimination law for that reason. Yet the reach and implications of this line of reasoning, when applied to grounds other than religion, easily show how excessive and debateable it is. Take, for instance, issues of health and disability: one could easily predict that all protection would be revoked if employers were allowed to take into consideration whether, or the extent to which, workers’ medical conditions were a result of their own choices. Such a line of reasoning could easily jeopardise the right to have a say in one’s medical treatment (or the right to refuse medical treatment altogether). Second, it must be noted that the ‘differential’ interpretation suggested by Advocate General Kokott – between religion and the other prohibited grounds of discrimination mentioned by the Directive – lacks any formal ground in the Directive itself. Rather, the whole point of the Directive is to protect workers from discrimination ‘on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation’ – and precisely, without any distinction being made among the listed grounds. To that extent, the notion that religious beliefs should never be expressed on work premises introduces a distinction that finds no support in the legislative framework. Finally, such interpretations of ‘religion as choice’ run afoul of the necessity, for anti-discrimination law and its interpreters, to take religion seriously. For, indeed, if religious discrimination is to be prohibited, it is not for secular judicial interpretations thereof to decide that religion is a matter of choice – or of anything else for that matter; for instance, a calling. For deeply religious individuals, the very notion that religious beliefs and the sartorial (or other) expressions thereof can be set aside and relegated to the coatrack the same way a political sticker, pin, or button can be temporarily removed or hidden, is outrageous – and fails to grasp the very stuff that religious belief is made of. Not to mention the fact that ‘for many people the right to share their beliefs with others, or to live publicly according to their religious convictions, is not merely a basic human right but also a sacred duty’.Footnote ¹⁷

For all these reasons, it was of great importance that the Court define the notion of religion as it ought to be understood in the sense of Directive 2000/78. And in fact, the concept adopted by the Court is a relatively robust one. After referring to both Article 9 of the European Convention on Human Rights and Article 10 of the EU Charter of Fundamental rights (§§28-29), the European Court of Justice makes it clear that EU law includes ‘the freedom of persons to manifest their religion’ and that the term religion under Article 1 of the Directive encompasses both the forum internum and the forum externum, i.e. the right to the ‘manifestation of religious faith in public’ (§30). Although it may seem a very banal (re)affirmation to some, it does have greater resonance in a number of national settings where the very possibility of expressing one’s religious beliefs in public has been increasingly challenged in recent years. France, to be sure, is a case in point where the tension surrounding the constitutional principle and republican value of laïcité has significantly curtailed individuals’ freedom of religion in recent yearsFootnote ¹⁸ (much to the specific disadvantage of Muslim womenFootnote ¹⁹ ), and where, subsequently, it is not uncommon to hear or read prominent political actors expressing the (juridically erroneous) notion that expressions of religious faith ought to be banished to the private sphere. And others countries seem to be witnessing a progression of anti-religious sentiment as well.Footnote ²⁰

This relatively robust conception of religion as far as Directive 2000/78 is concerned remains essentially toothless or idealistic, however, as it is not brought to bear during the further steps in the Court’s reasoning – i.e., when the Court moves on to examine the question referred by the French Cour de cassation, namely: could the firing of a female Muslim employee on the grounds that customers had expressed their dislike of the headscarf qualify as discriminatory on the grounds of religion?

Customer preferences and ‘genuine and determining occupational requirements’

In the Bougnaoui case, the European Court of Justice establishes that if and when a private undertaking has formalised its neutrality policy in a formal rule – and granted the rule is indeed neutral in that it does not refer to one religion in particular and fails to distinguish between religious and other beliefs – indirect discrimination may ensue. But in such cases, the reasoning to be applied is the one developed in the Achbita case, where the Court explains that such rules may cause indirect discrimination unless they are found to pursue a ‘legitimate aim’ and are implemented by means both ‘appropriate and necessary’.Footnote ²¹ It also examines an alternative situation, namely: when there is no such formalised internal rule requiring neutrality, differential treatment could, under very limited circumstances, be justified for reasons pertaining to ‘genuine and determining occupational requirements’ as foreseen by Directive 2000/78’s Article 4§1. In this particular case, the referring court was asking the European Court of Justice to establish whether the willingness of an employer to take account of a customer’s wish to no longer have services provided by a worker who, like Ms Bougnaoui, wore an Islamic headscarf constituted a ‘genuine and determining occupational requirement’ within the meaning of Article 4§1 of Directive 2000/78.

That the French Cour de cassation should refer that question to the European Court of Justice is in and of itself quite remarkable, for it indeed sheds light on an interesting paradox pertaining to the socio-political meaning of anti-discrimination law in contemporary societies.Footnote ²² On one hand, the issue of customer preference might appear to raise such fundamental questions (‘anti-discrimination law 101’Footnote ²³ ?) that the fact of it being referred to the European Court of Justice in 2017 could be read as a formidable leap backwards from what we thought was commonly understood about anti-discrimination law. What, indeed, did the Greensboro FourFootnote ²⁴ and many others fight for if, well over 50 years later, the question – can customer preference justify the implementation of discriminatory practices? – is still so fraught that France’s highest judicial court would refer it to the European Court of Justice? On the other hand, the issue of customer preference does in fact echo theoretical questions of profound complexity pertaining to the scope of anti-discrimination law. In fact, it is highly interesting that the European Court of Justice should choose to define the ‘legitimate’ desire of employers to impose a rule demanding neutrality of conviction from their employees as a concept grounded in the freedom to conduct a business; framing it this way does indeed echo issues raised by Hannah Arendt in her important ‘Reflections on Little Rock’ on the scope and reach of anti-discrimination law.Footnote ²⁵

Ultimately, however, the European Court of Justice answered the question referred by the French Cour de cassation in the negative. Reaffirming that anti-discrimination law extends to private relations – between employers and employees – thereby making them subject to the relevance and legitimacy of a juridical norm that constrains the former from discriminating against the latter on a number of forbidden grounds, the Court ruled that the exception carved out by Article 4§1 of the Directive should be interpreted narrowly. The notion of ‘genuine and determining occupational requirements’ ought thus to apply only to situations in which the nature of the activities concerned objectively demands that the employees’ religion (or sex, ability…) be taken into account; it can never cover subjective considerations such as ‘the willingness of the employer to take account of the particular wishes of the customer’ (§40).

It now falls to national courts to draw conclusions from the European Court of Justice rulings of March 2017 – in both the Achbita and Bougnaoui cases, and beyond. As far as the French case goes, it is safe to predict that French courts will find the firing of Ms Bougnaoui discriminatory; it is hard to imagine that it could be convincingly argued that removal of the headscarf Bougnaoui had been wearing since day one was suddenly a ‘genuine and determining occupational requirement’ for the position of design engineer she had been holding, apparently to everyone’s satisfaction, for over a year. But, from a wider socio-political perspective, however, it is unclear to what extent this most probable legal resolution of the case will truly have an impact on social practices inherent to the management of religious expression and diversity issues in the workplace. In fact, when read in combination with the Achbita case, the Bougnaoui ruling seems to lose its bite. For indeed, even though it follows from the Bougnaoui case that employers ought not be outspoken about basing decisions to dismiss personnel on customers preference, the ruling somehow incites or invites them to anticipate difficulties, anxieties or reluctance on the part of their clientele, and to internalise a possible solution in the form of a neutrality requirement as a matter of internal company policy. With the exception of the hardly insurmountable constraint of ensuring that the policy be enforced by means appropriate (consistent and systematic) and necessary, the Achbita ruling seems to provide a legal framework very favourable to such strategies.