June 17, 2010
The Appeal Court of Amsterdam (Gerechtshof Amsterdam) issued on the 15th of June an interesting judgment concerning the wearing of crucifixes by the personnel of a private company that provides public transport services. The personnel of the company GVB must wear a uniform during working hours. The wearing of ornaments on their uniform such as a necklace or a brooch is forbidden. This judgment provoked a little discussion in our team. Bellow you will find a short summary of the case and several comments of some team members.
The applicant in this case is a Christian who wears a necklace with a crucifix of ca. 5 cm. He was asked to hide it under his uniform which he refused. The applicant argues that his right to freedom of religion as guaranteed by article 6 of the Dutch Constitution and article 9 of the European Convention of Human Rights is violated. He also refers to the situation of Muslim women in the same company who are allowed to wear a headscarf. The company replies that the aim of the ban on the wearing of visible ornaments is to keep the uniformity of the personnel. Concerning the headscarf the company states that it is an integral part of the uniform as it is a shawl in the same color as the uniform and with the logo of the company.
The Amsterdam Court accepts that the wearing of the crucifix by the applicant is part of his religious conviction being a Christian. “[I]n comparison with others” the ban on the wearing of ornaments consequently affects the Christians in a particular manner. This way, with the ban, the transport company indirectly makes a difference between several groups. This difference in treatment can only be justified when a legitimate aim is pursued and when the means are relevant and necessary for this aim.
The court accepts the strive to professional uniformity as a legitimate aim. The ban on the wearing of ornaments on the uniform is relevant for the aim pursued since this instruction prevents that personal touches are given to that uniform. Finally the Amsterdam Court finds the ban necessary for this aim. The court reasons that the wearing of necklaces or other ornaments is not consistent with the principles of professionalism and uniformity and that the aim pursued can not be achieved with other means. The ban in this case is according to the Amsterdam Court not disproportionate. (§ 3.12) The court concludes that there is no indirect discrimination in this case.
In the second part of the judgment, the Amsterdam Court answers the question whether the fact that the transport company did not allow an exception on the rule in this case was in breach with his duty to “good employership”. The Court find the attitude of the employer not unreasonable as he offered the applicant the alternative to wear a ring or a bracelet with a crucifix and in case he needed so, the applicant could get a loan near the company to buy such an alternative. Consequently the court concluded that the freedom of religion of the applicant did not require an exception. Concerning the comparison with the headscarf, the Amsterdam court followed the company’s reasoning, stating that the headscarf, which is incorporated in the uniform, is not consistent with the professional and uniform character of the uniform.
Alexandra Timmer says: “I find this a complex issue. What to think? As a Dutch person, I can sympathize with the GVB, because I clearly see them trying to deal in a reasonable manner with the complex multicultural society that is Amsterdam and that is their own organization. The GVB accommodated Muslim women by designing shawls in the colors of the firm and with the firm’s logo, which women can wear as headscarf. They tried to accommodate the applicant by offering him to wear the sign of the cross on a ring or on a bracelet. They even offered him a loan to buy one of these pieces of jewelry. Also, I agree with the Court that the aim of the GVB is legitimate and that they are allowed to require their employers to wear a uniform.
On the other hand, I can sympathize with the conductor who is incensed that he is not allowed to wear a symbol of his faith. I think having a certain identity and acting on that identity should have the same protected status; being allowed to be somebody is an empty shell if you’re not allowed to act on that identity. People should not be expected to cover, to borrow a term from Yale law professor Kenji Yoshino. By “covering” Yoshino means to tone down a disfavored identity in order to fit into the mainstream. And covering is of course, literally, what the GVB asks its employers to do.
In the end, the anti-covering argument would carry the day for me. Notwithstanding the best efforts of the GVB, the law should protect individuals from such covering demands.”
Stijn Smet says: “I do not agree with the assessment of the Amsterdam court. I fail to see how the wearing of any necklace could disrupt the uniformity of the uniform to such an extent that it would reflect poorly on the professionalism of the organisation. I find such a position even more difficult to defend in the case of a necklace with a crucifix, due to the fundamental importance it can have for an individual who wishes to show her religious convictions to the outside world. Since no arguments of neutrality (which can sometimes make sense, although they can also be questioned) or security reasons were invoked in the instant case, I do not support the decision made. The mere fact that the applicant wore a cross should not reflect on the uniformity and professionalism of the organisation. Everyone will still recognise him easily as belonging to the organisation, so uniformity cannot be accepted as being required for recognisability. And his professionalism should flow from the manner in which he interacts with the customers of the organisation, not from the manner in which they perceive him based on what he wears around his neck. For my part, if an employee wants to wear piercings or happens to have a tattoo, so what? The immediate reflex of many people might be that those external ‘symbols’ say something negative about the person’s personality and capacities. But it is exactly these types of stereotypical reflexes one must fight against. Not only in other people, but also within oneself. Because in the end, they do not say anything about a person’s personality or capacities. Actions speak louder than words. And infinitely louder than appearances.
I also find it interesting to notice that – for once – it is the crucifix that suffers from its visibility. Usually it is the headscarf that suffers from being so easily recognisable. It just goes to show that people who wish to demonstrate their religious convictions should not be punished on the basis of how visible or easily recognisable their religious symbols happen to be. What matters is the fact that to them it is an important part of their identity, not the size of the symbol. Although I do not think the applicant in the discussed case would have had a valid argument if he would have been carrying a life-size cross around. There are in the end limits to everything.”
Personally I find this case very interesting as it requires a shift in thinking towards questions concerning religious symbols. In the headscarf debate the discussion was the opposite: by banning ostentatious religious clothes, you affect in a disproportionate manner some particular groups, namely the Jews, the Muslims and the Sikhs, since they don’t have an alternative for their kippa, headscarf or turban, while a cross can be worn very discretely or bellow the clothes. In this case, the Christians are particularly affected, as they don’t have the possibility to integrate their cross in their uniform.
I do agree with the legitimate aim and the relevancy of the ban for this aim, but I do not agree with the Amsterdam Court’s reasoning about the proportionality and necessity of the ban. I do especially not agree with the argument that the right to freedom of religion does not require an exception. I personally believe that it is perfectly possible to respect the applicants freedom of religion and at the same time guaranteeing the uniformity of the company. It is true that the company offered the alternatives of wearing a ring or a bracelet with a crucifix. If the question of visibility was important to the applicant, this could be a good alternative. (But what is the difference in consequence for the uniformity when the applicant wears a cross around his neck or on his finger?) But from the judgment we can derive that the applicant wanted to wear a crucifix near to his heart. (3.13) If this is the reason why he wears the necklace, who are we to tell him to wear a bracelet with a crucifix around his wrist? We can’t just be blind to the reason why the applicant wears the crucifix by asking him to wear it on a ring or a bracelet; this would be the same as asking a Muslim woman to wear a transparent headscarf… Of course one can argue that under his clothes the crucifix still stay close to his heart, but can we just deny the way a person wants to exercise his religion?
I understand the concerns of the employer, but I do think that the right to freedom of religion and the prohibition on discrimination as guaranteed in articles 9 and 14 of the ECHR requires the employer to accommodate the Christian needs as well as he did with his Muslim personnel. As the question at stake is one of uniformity and not of neutrality, contrary to the Amsterdam Court, I think there is another way to achieve this aim. Initially discrete necklaces were authorized but this criterion was to broad which caused some discussions. Consequently, the company decided to ban all visible necklaces. (cf. § 3.8) A possible solution might be, that the company provides necklaces with a discrete crucifix. For all the Christian conductors who wish to express their religion, this crucifix will be the same, so the uniformity will be respected. This is what the company did for the Muslim conductors. They have the possibility to wear a headscarf but the company limits it in color and size. Both the headscarf and the crucifix will in this way be seen as an integral part of the uniform, and not as a personal head covering or a simple necklace.