EU: Court of Justice Reaffirms its Views on Wearing Religious Signs at the Workplace
The case concerned a Belgian woman of the Muslim faith who applied for a position at a Belgian company which manages social housing. Her candidature was denied because she expressed her wish to wear a headscarf, which would be in contradiction with the company’s neutrality policy. Also, her proposition to wear another type of head covering was denied.
The Belgian labour tribunal first asked the preliminary question whether the words ‘religion or belief’ contained in the directive on equal treatment in employment and occupation are to be interpreted as two facets of a single protected criterion or, on the contrary, as two separate criteria. The CJEU interprets the Directive in a way that the words ‘religion or belief’ contained therein constitute a single ground of discrimination covering both religious belief and philosophical or spiritual belief. This discrimination ground is to be distinguished from ‘political or any other opinion’.
Next, the CJEU refers to its previous case law (G4S Solutions and Wabe & Müller Handel) to clarify that a general prohibition of wearing any religious, philosophical or spiritual signs at work does not constitute a direct discrimination if the prohibition is applied in a general and undifferentiated way.
It is however possible to constitute an indirect discrimination if is established that the apparently neutral obligation it encompasses results, in fact, in persons adhering to a particular religion or belief being put at a particular disadvantage. This is not the case when the prohibition is justified by legitimate aim and the means of achieving that aim were appropriate and necessary. However, the mere desire of an employer to pursue a policy of neutrality is not sufficient to justify objectively a difference in treatment. Only where there is a genuine need on the part of the employer there can be an objective justification. In the Wabe and Müller Handel case law, the Court mentioned the rights and legitimate wishes of customers or users as a genuine need. That is the case, for example, of parents’ right to ensure the education and teaching of their children in accordance with their religious, philosophical and teaching beliefs. Also, the need to avoid social conflicts can constitute such a genuine need. The CJEU’s demand for a genuine need is inspired by the concern to encourage, as a matter of principle, tolerance and respect, as well as acceptance of a greater degree of diversity, and to avoid abuse of a policy of neutrality established within an undertaking to the detriment of workers who observe religious precepts requiring the wearing of certain items of clothing. The employer should demonstrate this genuine need and it is up to the national court to ascertain whether this can justify the difference in treatment. The CJEU did not clarify the concept of a “genuine need” any further in this case.
- It remains possible to apply a neutrality policy to ban all visible signs of religious, philosophical and spiritual signs at the workplace,
- This neutrality policy should be applied in a general and undifferentiated way,
- The employer should be able to demonstrate a genuine need for the neutrality policy. Which situation can fall under a genuine need should be further clarified by future case law.