Direct Discrimination and Indirect Discrimination: Headscarves and the CJEU
The decision of the CJEU in Achbita has been much anticipated as the first full judgment of the Court on discrimination based on religion and belief under Directive 2000/78. Although the facts of the cases are similar, the legal questions referred to the Court differ. In Achbita a receptionist wished to wear a headscarf to work; her employer then formalised its prohibition on employees wearing any visible signs of political, philosophical or religious beliefs and Achbita was dismissed. The question for the CJEU was whether this amounted to direct discrimination. Bougnaoui, a design engineer, was dismissed after she refused a client’s request to stop wearing her veil. The question for the court was whether the employer could treat the request by the client as a ‘genuine occupational requirement’ (GOR) which could justify the potential discrimination.
Both allegations of direct discrimination were, unsurprisingly, rejected. Discrimination based on a generally applicable dress code is not direct discrimination; and the GOR exceptions are intended to cover objective requirements of the job, rather than preferences of clients. The court also considered the question of whether any potential indirect discrimination caused by a neutral dress code could be justified as a proportionate means of achieving a legitimate aim.
In discussing the justification of indirect discrimination the CJEU takes something of a mid-way course between the diverging approaches of the two Advocate Generals’ opinions on the cases. In Achbita, AG Kokott had suggested that the indirect discrimination was justified. One of the factors relied on in that assessment was the national identity of the Member State concerned, thus giving a wide discretion to national courts. This approach runs the risk that the CJEU could allow different standards of equality protection in different member states. To justify this lower standard of protection in the case of religious equality, AG Kokott suggested that religion is a matter of choice and that ‘an employee may be expected to moderate the exercise of his religion in the workplace”. In contrast, AG Sharpston in Bougnaoui argued that all grounds of discrimination should be treated the same, and was clear that customer needs should not be used to justify restrictions as they can be a cover for stereotype and prejudice on the part of clients. Rather than seeing religion as a matter of choice, she considered religion fundamental to identity and so not to be restricted lightly.
The CJEU echoes AG Sharpston in its finding that a desire to uphold customer choice will not be a legitimate aim for any restrictions on religious dress. But it also follows AG Kokott’s fairly ready acceptance that indirect religious discrimination can be justified, with its decision that it will be proportionate to restrict religious dress in public facing roles, and its willingness to leave much to national courts to decide.
The cases may have little practical impact, given that it was already largely accepted that restrictions on religious dress were potentially indirectly discriminatory unless justified. However, they do develop the law somewhat. First, although restrictions on religious dress in public facing roles may readily be accepted, it can be assumed that it will be difficult to justify restrictions in roles with no customer contact. Second, the Court suggests that, in assessing whether dress restrictions on dress are necessary, it should be taken into account whether the employer had tried to find alternative work for the employee, perhaps in a non-client facing role. The requirement to engage in some dialogue to see if there are other roles that the employee could fulfil creates some obligation on employers to try to accommodate religious employees in other roles.
While these may be positive developments, some reservations can also be identified. The willingness of the Court to limit religious symbols in public facing roles could create very significant limits on the protection of religious dress at work, affecting whole sectors of employment such as health and social care, teaching, retail and hospitality. A restriction to ‘back room’ non-client-facing roles could also limit the career choices of religious workers. Moreover, not only are employment opportunities restricted by such an approach, but the visibility of Muslim women and Sikh men at work is limited too. Confining protection to non-visible roles limits the potential for the promotion of positive role models for minorities and places significant restrictions on the ability to promote social inclusion at work.
The approach of the CJEU is very similar to that of the ECtHR in Eweida, allowing restrictions on religious dress where they can be justified as proportionate means to achieve a legitimate aim. While a similar approach to similar facts is helpful in terms of consistency between the two courts, the ease with which the CJEU accepts restrictions on religious dress in public facing roles means that it may have missed the chance to establish strong standards for the protection of religious equality in its first religious discrimination case.