September 14, 2016
The Achbita and the Bougnaoui cases give a first opportunity to the European Court of Justice to address religious discrimination. Since the adoption of the anti-discrimination directives after the Amsterdam treaty, the Court ruled on a significant number of cases, mostly on discrimination based on age or gender, but also on sexual orientation, disability, race and ethnicity. Religion was not in the picture so far. As if national courts kept the issue for themselves, apart for a few cases making their way to the European Court of Human Rights.
A first opportunity that resembles a poisoned gift. Two high-profile cases, brought by the Supreme Courts of the judiciary (Cour de cassation) in Belgium and in France, which fall in ‘the Islamic veil conundrum’ that started in the late 1980s in both countries. Two countries where the principle of neutrality (or laïcité) is increasingly brandished like a flag with uncertain colours by strange bedfellows and not only as a key organizing principle of a democratic State attached to the Rule of law. Two countries severely hit by terrorist attacks made in the name of Islam and where social and political tensions are sour. And two Advocates General who have different views on some fundamental legal concepts of anti-discrimination law.
Is a private company allowed to dismiss a Muslim woman because she wears the hidjab at work? This is the question at the core of the Achbita and the Bougnaoui cases. The facts of these cases are important. In one instance, there was an unwritten company rule prohibiting the wearing of any visible signs of political, philosophical or religious belief which was incorporated in the company bylaws the day after the dismissal. In the second instance, the firing was based on the complaint of a client company whose employees felt ‘embarrassed’ by the hidjab of Mrs Bougnaoui.
Labelling the discrimination at stake (direct or indirect?) is essential. Behind the legal technicality lies the room for justification available under EU law.
Under the EU Employment Equality Directive 2000/78/EC, direct discrimination occurs where one person is treated less favourably than another has been or would be treated in a comparable situation, on the ground of religion or belief. Such a difference of treatment is allowed in two very limited exceptions: a genuine and determining occupational requirement, on the one hand, and with respect to some occupational activities within churches and ethos-based organisations, on the other hand. Indirect discrimination focuses on the effects on an apparently neutral provision, criterion or practice that would put persons having a particular religion or belief at a particular disadvantage compared with other persons. It might be objectively justified by a legitimate aim, providing that the means of achieving that aim are appropriate and necessary.
While the line between direct and indirect discrimination seems clear-cut in theory, it is plain that an apparently neutral provision might actually target certain people. In the Chez case, decided in 2015, the European Court of Justice ruled that the fact that ethnic origin was a determining factor for the decision to impose a different treatment is sufficient to demonstrate direct discrimination. The case challenged a practice of an important company installing electricity meters in a Roma district at a height of six metres, whereas in other districts the meters were placed much lower to allow consumers to see them. Moreover, the European Court of Justice developed a non-formalistic approach to the distinction between direct and indirect discrimination even in cases where there was no such discriminatory purpose. In this line, it held that the requirement of marriage, for the grant of certain benefits, constitutes direct discrimination on sexual orientation in a legal system that does not allow same-sex partners to marry.
In the Bougnaoui case, there is a body of evidence that stereotype and prejudice found the dismissal. The parallel with the Feryn case (2008) is obvious. What is different between a situation where people of Moroccan origin are not recruited because ‘customers don’t want them’ and a dismissal based on the embarrassment of a client company justifying the un-obeyed order ‘there should be no veil next time’. Advocate General Kokott does not seem to defend another view when she states that a dismissal grounded on ‘stereotypes or prejudice against one or more particular religions or against religious beliefs in general’ would amount to direct discrimination. It is true that her opinion was delivered in the Achbita case where the facts are slightly different. But a company policy imposing neutrality in its dress code should not give a blank cheque to discriminate. An assessment of the context in which the policy was adopted should be required so as to define whether the policy was not targeting religious minorities. If it did, the regime of direct discrimination applies.
In such circumstances, the only exit door is to demonstrate that the duty not to wear a hidjab, or any religious, political or philosophical symbols at work matches the genuine and determining occupational requirement exception. While both Advocates General stress that this exception should be restrictively construed, they do not agree on the way to do this.
According to Advocate General Sharpston, the genuine and determining occupational requirement should ‘be limited to matters which are absolutely necessary in order to undertake the professional activity in question’. Freedom to conduct a business is not absolute and one cannot justify direct discrimination on the ground of the commercial interest of a business that wish to endorse the prejudice of its customers. The hidjab of Mr Bougnaoui has nothing to do with her ability to perform her duties as a design engineer.
Advocate General Kokott defends the view that not only the nature of the occupational activity but also the context in which it is carried out might justify a difference of treatment on the ground of religion: ‘While the work of a receptionist can as such be performed just as well with a headscarf as without one, one of the conditions of carrying out that work may nonetheless be compliance with the dress code laid down by the employer’. Furthermore, Advocate General Kokott gives an unprecedented scope of the genuine and determining occupational requirement exception: ‘the whole purpose of that provision is to make it possible to justify differences of treatment on economic — or more precisely, business — grounds, albeit only under strict conditions’. This is quite startling as, so understood, the principle of non-discrimination in employment yields to the economic freedom. After that, requiring that the dress code and the corporate image do not pursue an illegitimate aim (such as the customers’ wish to be served by employees of a particular religion or of no apparent religion) sounds like some kind of apple pie rhetoric. It does not mean anything if the facts and the context of the Achbita case are not fully addressed.
Besides the genuine and determining occupational requirement exception, what about considering the neutrality requirement as the ‘ethos’ of the private company? Religious discrimination in employment is indeed allowed under certain conditions for churches and other ethos-based organisations. Advocate General Sharpston is adamant: such an exception intended to give effect to the freedom of religion should not be applied to for-profit organisation or businesses. The French Court of Cassation did not rule differently when, in the famous Baby Loup’s case, the plenary Chamber held that the principle of secularism (laïcité) and the duty of neutrality are not a kind of belief or an ‘ethos’ on which private organisations (here a private nursery largely subsidized by the government) can rely on.
Beyond the Achbita and the Bougnaoui cases whose facts call for a qualification of direct discrimination, there are other instances in European countries where company bylaws imposing a dress code could amount to indirect discrimination. When the brand image of the company is not based on prejudice, a policy requiring that employees wear a uniform or are dressed in a ‘neutral’ way should be assessed through the usual proportionality test. The corporate image of a company might not totally disregard the freedom of religion of its employees, as the European Court of Human Rights stressed in the Eweida case (2013) concerning a hostess of British Airways wearing a cross on a necklace.
Anti-discrimination law provides tools to address unchallenged relations of domination. It cannot be merely trumped with a triumphant economic freedom using neutrality as a loincloth for prejudice. Religious discrimination is only the tip of the iceberg. It is trite to say that hidjab bans may sometimes cover up racial prejudice. A way to send a message about minorities inaudible on one level, but clearly heard on the other. Furthermore, the gender issue is totally overlooked despite right-thinking speech on women’s emancipation. Behind Mrs Achbita and Mrs Bougnaoui cases lies the access to employment of thousands of Muslim women. A crucial question in countries with significant employment discrimination rate.
 Emmanuelle Bribosia is professor at the Institute for European Law and at the Law Faculty of the ULB (Université libre de Bruxelles). She is the director of the Centre for European Law of the Law Faculty of the ULB.
 Isabelle Rorive is professor at the Law Faculty of the ULB and the director of the Perelman Centre for Legal Philosophy.