The Court of Justice of the European Union (CJEU) delivered its long-awaited decision in Samira Achbita v G4S Secure Solutions NV on 14 March 2017. The referring Court had asked the CJEU whether under Article 2(2)(a) of Directive 2000/78, ‘the prohibition on wearing, as a female Muslim, a headscarf at the workplace constituted direct discrimination where the employer’s rule prohibits all employees from wearing outward signs of political, philosophical and religious beliefs at the workplace?’ The Court answered the question in the negative. This post argues that the Court’s analysis is unconvincing because it failed in understanding the import of the referred question which specifically concerned discrimination suffered ‘as a female Muslim’ and it thereby misapplied the requirements of proving direct discrimination under Article 2(2)(a) of the Directive.

The Court’s reasoning on direct discrimination is located in four terse paragraphs [29]-[32]. The Court first noted that the rule covered any manifestation of political, philosophical or religious beliefs without distinction and thus treated all workers in the same undifferentiated way by requiring them to dress neutrally [30]. It then noted that there was no evidence to conclude that the rule was applied differently to Ms Achbita as compared to other employees [31]. Based on this, it concluded that the rule did not give rise to any difference in treatment to constitute direct discrimination based on religion or belief under Article 2(2)(a) of the Directive [32].

The flaw in this reasoning appears in the Court’s view of direct discrimination as one which could not be based on religion when a rule applied to all. Such a requirement is absent from the plain text of Article 2(2)(a) which provides that ‘direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1’. The requirements for direct discrimination from this definition are clear – (i) that the person be treated less favourably than another; (ii) on the grounds of religion or belief, disability, age or sexual orientation. In relation to the second requirement, the Court misses that a rule which explicitly mentions prohibition of manifestation of religious beliefs is in fact one which is directly based on religion even if it applies equally to all religions.

The CJEU had previously applied this understanding of direct discrimination in CHEZ, where it found that a practice which applied to an entire district was still based on ethnic origin when ‘introduced and/or maintained for reasons relating to the ethnic origin’ CHEZ [91]. A prohibition on religious dressing is prima facie one introduced for reasons relating to religion, including reasons of excluding religion from the workplace. The formal rule in Achbita was in fact adopted by the employer after Ms Achbita had declared her intention to wear an Islamic headscarf [20]. The Court in Achbita then ignores its own understanding of direct discrimination which relates not to the lack of uniformity in treatment but to the difference in treatment being based on reasons relating to prohibited grounds. Furthermore, the Court also ignored that Achbita was treated less favourably than other employees who did not wear a headscarf or other religious insignia because it was not part of their religious identity in the same way as a female Muslim. Herein lies the crux of the referral on direct discrimination which explicitly referred to a female Muslim—one for whom religious, cultural and gender identities are co-constituted such that the headscarf is not just a manifestation of a religious belief which can be thought of as separate from the ‘neutral’ identity of a Muslim woman without a headscarf; but that which centrally constitutes Muslim women’s identity, in the same way as Sikh men wear turbans and Jewish men wear kippot. In that sense, every other person whose religious identity conformed to the employer’s preferred ‘neutral’ image of an employee – Muslim women who chose not to wear headscarves, Catholics who did not wear crosses, Sikhs without kara or turban etc. – was the appropriate comparator for understanding the less favourable treatment suffered by Achbita.

Ultimately what the Court lost sight of in focussing exclusively on the uniform application of the rule was the substantive meaning of ‘less favourable treatment’ under Article 2(2)(a) of the Directive. The Court – especially under the Race Directive in cases like Feryn and CHEZ – has interpreted the harm or less favourable treatment in direct discrimination to cover stereotypes, stigma and prejudices. In equating the effect of the ban on Muslim women wearing headscarves with others forbidden from displaying their political, philosophical and religious beliefs, the Court wilfully ignores the centrality of headscarves for Muslim women and thus the resulting loss of dignity in the Hobson’s choice of either exiting employment or abandoning the headscarf in the employment context.