ECJ headscarf series (3): The Everyday Troubles of Pluralism

By Matthias Mahlmann, University of Zürich

Differences and Common Ground

This is legal deliberation with an edge: the two Opinions of Advocate General Kokott in the case of Achbita (C-157/15) and of Advocate General Sharpston in the case of Bougnaoui (C-188/15) come to opposing results though dealing with cases that are, in many respects, very similar.

Whereas Advocate General Kokott regards a company rule that prohibits the wearing of any religious symbol or a symbol associated with some form of belief as a genuine determining occupational requirement that serves a legitimate aim and is proportionate, Advocate General Sharpston argues that there is no such justification.

But not only the results of the two Opinions delivered by the Advocate Generals are different; their interpretation of central legal concepts differs as well. This is even true for the concept of discrimination. Whereas Advocate General Kokott regards the prohibition of wearing a headscarf at work as a form of indirect discrimination, Advocate General Sharpston regards it as direct discrimination. Advocate General Kokott writes (para. 53) that,

in the present case, therefore, this leaves only a difference of treatment between employees who wish to give active expression to a particular belief — be it religious, political or philosophical — and their colleagues who do not feel the same compulsion. However, this does not constitute ‘less favorable treatment’ that is directly and specifically linked to religion.

Advocate General Sharpston, in contrast, argues (para. 88) that an employee who had not chosen to manifest his or her religious belief by wearing particular apparel would not have been dismissed. This leads her to the conclusion that the dismissal amounted to direct discrimination against the employee.

Another major difference concerns the relevance of the possibility of discreet religious apparel, which, for Advocate General Kokott, is an important consideration regarding the proportionality of any measure. Advocate General Sharpston accepts this position in principle, but argues that some symbols are of a nature that leaves no discreet choice for the respective believer, for example the turbans worn by Sikhs or Islamic headscarves.

Another important difference concerns the question of whether religion and, more precisely, the manifestation of religion is different to other characteristics in that one can decide not to manifest a certain religious belief, whereas one cannot do anything of that sort in the case of other characteristics, such as sex or assumed race, which are directly related to a human beings’ personality. Advocate General Sharpston disagrees with that point, arguing that a religious manifestation is intrinsically related to the beliefs that a person holds.

These are very important differences, which raise profound and difficult questions. But one should not overlook the fact that the two Opinions share common ground as well. Especially, even though Advocate General Kokott allows considerably wider discretion to corporate entities determining the content of the rules that apply to their employees, she nevertheless sets crucial limits to this discretion. Most importantly perhaps, the wishes of customers are regarded as entirely irrelevant for the permissibility of such restrictions (para. 91). A restriction on wearing religious symbols thus cannot be based on the real or perhaps even just assumed wishes of customers of the respective company. She emphasizes, in addition, the importance of intersectional effects. In other words, she notes that discrimination may adversely affect particular groups that are a traditional target of certain discriminatory measures. If so, she finds, unequal treatment is not proportionate (para. 121).

In addition, to list just one other example, Advocate General Kokott formulates a critique of traditional or customary patterns of discrimination, which cannot serve as a justification for a difference in treatment at all (para. 123).

It is very important to emphasize this common ground between the two Opinions, because it is good news from the point of view of a realistic assessment of the challenges that lie ahead in Europe, where millions of citizens are of Muslim faith. Islam is part of the religious make-up of Europe and will continue to be so. At the same time, in recent years, a discourse has sprung up that not only criticizes – and rightly so – the extremist, radical forms and interpretations of a politicized Islam that have been developed in recent years due to many factors, but that attacks Islam as such, as a somehow intrinsically inhuman religion. Powerful political actors are stirring and exploiting this discourse, which is a mayor danger for the prospects of peaceful religious pluralism in Europe. The fact that both Advocate Generals assert the importance of the prohibition of religious discrimination by relying on many convincing arguments, though coming to different conclusions in the concrete case, is thus to be welcomed. In the future, much will depend on a culture of religious broadmindedness buttressed by sufficiently robust prohibitions of religious discrimination.

Has the Right Balance been Struck?

The core of the problems with which the Advocate Generals struggled, as have many courts before them and surely as will many judicial institutions after them as well, is the need to balance the competing rights at stake, which in the concrete constellation are, most importantly, the right to freedom of religion and the economic freedom of the corporate entities concerned. Advocate General Sharpston makes the point (paras. 58 et seqq.) that it is of importance whether this general problem is framed as a problem of fundamental liberal rights or as a question of discrimination law. To her, discrimination law seems to formulate more exacting demands for the justification of unequal treatment. This question is of some practical importance because some jurisdictions construct these cases on the basis of the right to the free exercise of religion, rather than as an issue of discrimination law.

A prominent example for a religious freedom-based approach is the recent decision of the German Federal Constitutional Court concerning the wearing of the Islamic headscarf in public schools, formulating the opinion that a general ban would violate the principle of religious freedom (cf. M. Mahlmann, Religious Symbolism and the Resilience of Liberal Constitutionalism: On the Federal German Constitutional Court’s Second Head Scarf Decision, 16 German Law Journal No 4 (2015), p. 887 – 900). If one looks at the arguments made, however, these sharp distinctions between a freedom-based approach and discrimination law seem to disappear. In the end, questions of proportionality are decisive in both approaches, as is manifested in the argumentation of the Advocate Generals as well. There are important rights at stake. Freedom of religion is one of the central rights of any human rights catalogue. And economic freedom is an important matter as well, not only from a purely economic point of view but also as a means for the self-realization of individuals.

The weighing and balancing of these rights raises questions of proportionality. The problem is, in particular, whether a prohibition on the wearing of religious signs is necessary. Parties to the cases discussed in this blog series, including the European Commission, have argued that a less burdensome means to achieve the ends pursued by the corporate entities is to create a uniform or some other kind of apparel that includes religious symbols. Against this argument, Advocate General Kokott rejoins that this, however, does not serve the aim of the respective undertakings, which is to present a brand image that is characterized by neutrality.

This argument seems rather convincing at first sight, but after closer inspection it becomes less obvious. It may be in fact true that the wearing of certain religious symbols by employees is associated by third parties with the undertaking that employs this person. However, this seems to be a fallacious association. Primarily, the religious symbol in question is an expression of the beliefs of the person who wears it, and it is far from clear that it is necessarily and legitimately associated with the undertaking as such. So, an undertaking can very well pursue a policy of religious neutrality without demanding that its employees cannot manifest their personal views about religion by wearing certain symbols. This is a standard problem as concerns headscarf bans in the public sphere as well, where the personal expression of a religious belief is sometimes perceived as a manifestation of the fundamental orientation of a public entity. But, as indicated, this is not a logical necessity; it is just a habit of thought that perhaps should be overcome.

One of the most important points that Advocate General Kolkott makes in her Opinion, and forcefully so, is that customers’ wishes not to be served by a member of a certain religion cannot justify the discrimination of an employee by the undertaking. This mirrors the existing case law of the Court of Justice of the European Union.

The problem is the following: What other reasons, apart from the anticipated or real wishes of customers, could serve to justify the creation of a brand image of neutrality? If the wishes of customers are irrelevant considerations, it seems hard to justify a headscarf prohibition by means of an employer’s legitimate decision to create a brand image of neutrality. This corporate decision then seems to be based exactly on the anticipated wishes of the costumers not to be served by employees visibly displaying the signs of belonging to a certain religion that – according to the argument advanced above – are deemed to be irrelevant.

The discreetness of the symbol concerned seems of some, but not necessarily of decisive importance. Small symbols may have powerful effects, and as Advocate General Sharpston rightly points out, in some cases there is just no discreet form of a certain religious symbol, especially in the case of certain forms of apparel.

Another important question that is not discussed in any depth in the Opinions concerns the role of an employee’s consent to a contractual rule stipulating, as part of the employment contract, that certain religiously motivated apparel is not to be worn. In other words, is an individual in a position to waive her possibly existing rights under discrimination law or her right to freedom of religion? Advocate General Sharpston clearly seems to think that this is not the case, but some argument is needed to make the point that these rules, which protect the equality of religious beliefs and freedom of faith, are preemptory.

One reminder in this regard: if one follows down the road of providing wider protection to those who wear certain apparel because of a religious motivation, one should not underestimate the problems ahead with regard to setting the acceptable limits on which symbols employees can display as a matter of right, not least as far as political questions are concerned.

At the deepest level, questions concerning the meaning of human autonomy and its importance in comparison to other important fundamental rights positions are at stake here. What weight does human religious self-determination have in comparison with the economic freedoms of others, which are both entirely legitimate concerns? The Court of Justice of the European Union is now invited to answer this question in a decision that may have the potential to determine the crucial contours of religious freedom and equality for years to come. These are difficult times. Religiously motivated violence has taken many lives, and may take more in the future. And, to make things worse, politically instrumentalized resentment has again started to plague a continent that has suffered much in the past from this scourge. Much depends therefore on the courage of legal institutions to defend a religious pluralism worth its name.

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