In OP v Commune d’Ans the Court of Justice of the European Union (CJEU) returned to religious discrimination and headscarves, this time in the public sector workplace. Although the CJEU largely confirmed its previous position, the case represents a backwards step for religious equality, as public sector employers were allowed to impose restrictions on religious clothing on all staff, including those with no contact with the public. In the previous (private sector) cases the Court had suggested that restrictions were only likely to be justified if applied to public-facing roles. The CJEU also turned down the opportunity to consider the intersectional aspects of the case (based on the differential impact of headscarf bans on women).
OP, a lawyer working on contracts in a ‘back office’ role, informed her employer, the municipality of Ans, that she intended to wear a headscarf to work. The employer subsequently introduced an ‘exclusive neutrality’ rule prohibiting any staff, not only public facing staff, from wearing signs which might reveal political or religious beliefs. Two questions were referred to the CJEU: firstly, was the restriction direct or indirect discrimination and if so was any indirect discrimination justified; and secondly was there discrimination on grounds of sex given that the rule had a greater impact on women?
On the first question, the CJEU confirmed its earlier decisions in Wabe and Achbita that restrictions are not directly discriminatory if they apply to all religious signs and not just conspicuous ones. However, such rules may be indirectly discriminatory unless they are justified by a legitimate aim where the means of achieving that aim are appropriate and necessary.
As before, the Court relied on the margin of discretion allowed to states to reflect their diverse approaches to the role of religion and belief in the public sector in determining the legitimacy of any restrictions on religion. But in OP the Court went further and applied the margin of discretion to individual municipalities. This is significant, as practice varied between municipalities. While in Ans neutrality applied throughout all parts of the workplace (termed ‘exclusive neutrality’), other Belgian municipalities required only neutrality in customer facing roles (termed ‘inclusive’ neutrality). The extension of the margin of discretion to the local level in this way has the potential to reduce the protection for the non-discrimination rights of workers significantly.
The CJEU further limited the protection against religious discrimination by undertaking a limited review of the appropriateness and necessity of the need for neutrality. Once the aim of ‘exclusive’ neutrality had been held to be legitimate, the Court held that it must thus be necessary and appropriate to apply it to staff as long as this was done consistently to all staff. The finding here can be contrasted with the stricter standard of review of AG Collins in the case, who questioned both necessity and appropriateness: the application of the neutrality requirement was arguably not appropriate as there was evidence that the employer had not applied it consistently to all staff; and it was arguably not strictly necessary as other Belgian municipalities did not have such strict rules. Several municipalities require neutrality only for those with public facing roles, and yet they still clearly operate within the Belgian constitutional norms of neutrality in the public service.
The CJEU also referred to the lack of consensus on the wearing of headscarves in employment as relevant to its decision. Again this is open to debate: whilst there are different approaches to headscarves even within Belgium, the concept of consensus is not synonymous with unanimity; and across Europe there is, in practice, a large consensus allowing for the wearing of the headscarf in employment, particularly in back office roles. The Court could thus have taken a stronger position on this issue, noting the fact that large areas of Europe maintain a neutral public service and a clear separation of church and state without banning of headscarves in back office roles.
A further disappointing aspect of the case was the refusal of the court to engage with the critical question of intersectional discrimination. The referring court’s question about whether these facts might also give rise to a sex discrimination claim was given short shrift, on the basis that there was no clear legal basis for the claim provided to the court. However, the wider issue of intersectionality could have been considered as part of the assessment of proportionality by considering the particular impact of the neutrality requirement upon women.
Given that the aim of non-discrimination law is to increase inclusion at work for disadvantaged and minority groups, it is regrettable that the CJEU did not undertake strict scrutiny of proportionality in this case, accepting instead the imposition of an ‘exclusive’ – and therefore exclusionary – version of neutrality.