The Court of Justice of the EU upholds the prohibition of wearing any visible form of expression of political, philosophical or religious convictions in the workplace. Of course, always if it is justified “by the need of the employer to present himself in a neutral way to clients or to prevent social conflicts”.
This justification, says the Luxembourg-based court, must respond “to a true need of the employer and, within the framework of the conciliation of the rights and interests at stake, the national courts can take into account the specific context of their State. member and, in particular, more favorable national provisions for the protection of religious freedom “.
The case on which the court has manifested this Thursday, has to do with two employees, an assistant for people with disabilities and as a saleswoman and cashier in two German companies, who wore an Islamic headscarf in their respective workplaces.
Considering that wearing that scarf did not respond to the regime of political, philosophical and religious neutrality followed before parents, children and third parties, WABE eV, IX’s employer, asked IX to remove the scarf and, after its refusal to To do so, he temporarily suspended her from her duties and reprimanded her on two occasions.
MH Müller Handels GmbH, MJ’s employer, faced with her refusal to remove the scarf at her workplace, first assigned her to another job that allowed her to wear the scarf and then, after having sent it home, ordered her to Appearing in the workplace without overt and oversized signs of political, philosophical or religious convictions.
Both have appealed to the German courts, which have decided to consult the Court of Justice of the EU whether an internal regulation of a company that prohibits workers from wearing any visible sign of political, philosophical or religious convictions in the workplace constitutes discrimination. directly or indirectly for reasons of religion or convictions against workers who follow certain dress rules in accordance with religious precepts, under what circumstances can a possible difference in treatment based indirectly on religion or belief be justified, and what elements should be taken into account when examine the adequacy of that difference in treatment.
And the Court of Justice has specified under what circumstances a difference in treatment based indirectly on religion or belief can be justified.
First, the Court of Justice examines whether an internal rule of a company that prohibits workers from wearing any visible sign of political, philosophical or religious convictions in the workplace constitutes direct discrimination on the grounds of religion or belief, prohibited by the European standard, against workers who follow certain clothing rules in accordance with religious precepts.
In this regard, the Court of Justice indicates that the use of signs or clothing to express religion or personal convictions is covered by “freedom of thought, conscience and religion”. Furthermore, the terms “religion” and “convictions” are considered to be the two sides of the same and only ground of discrimination.
On the other hand, the Court recalls its jurisprudence according to which this rule does not constitute direct discrimination if it applies without distinction to any manifestation of those convictions and treats all company workers equally, imposing on them a general and undifferentiated neutrality clothing that opposes the use of said signs.
The Court considers that this assessment is not undermined by the fact that some workers follow religious precepts that require them to dress in a certain way.
And this is so because, although the application of a rule such as the one mentioned may cause particular annoyance to this type of worker, this circumstance does not affect the appreciation that the same rule, which reflects the company’s neutrality regime, it does not establish, in principle, a difference in treatment between workers based on a criterion inextricably linked to religion or belief.
In the present case, the contested rule appears to have been applied in a general and undifferentiated way, since the employer in question had demanded and obtained that an employee wearing a chain with a cross agree to remove this sign.
The Court therefore concludes that, in those circumstances, a rule such as the one at issue in the main proceedings does not constitute direct discrimination on grounds of religion or belief against workers who follow certain dress rules in accordance with religious precepts.
Secondly, the Court of Justice examines whether a difference in treatment based indirectly on religion or belief, by that internal rule, may be justified by the will of the employer to follow a regime of political, philosophical and religious neutrality vis-à-vis his clients or users in order to take into account their legitimate expectations.
And the Court of Justice answers this question in the affirmative after identifying the elements that condition this conclusion.
In this regard, the Court of Justice indicates that the will of an entrepreneur to follow a regime of political, philosophical or religious neutrality in relations with his clients may constitute a legitimate aim.
The Court of Justice states that, however, mere will is not sufficient, by itself, to objectively justify a difference in treatment based indirectly on religion or belief, since the objective nature of such justification can only be determined before a true need of the employer.
The pertinent aspects to determine this need are, especially, the rights and legitimate expectations of clients or users and, more specifically, in matters of education, the desire of parents that their children be supervised by people who do not manifest their religion or convictions when in contact with children.
To assess the existence of this need, “the fact that the employer provides proof that, without the neutrality regime, his freedom of business would be violated is particularly relevant, insofar as, taking into account the nature of his activities or the context in which they are inscribed, would suffer unfavorable consequences “.
Next, the Court of Justice points out that the difference in treatment “must be capable of guaranteeing the correct application of the neutrality regime, which implies that said regime is followed consistently and systematically”. Finally, “the prohibition of wearing any visible sign of political, philosophical and religious convictions in the workplace must be limited to what is strictly necessary in consideration of the real extent and seriousness of the unfavorable consequences that the employer intends to avoid by means of prohibition”.
Third, the Court of Justice examines whether an indirect discrimination based on religion or belief, arising from an internal regulation of a company that prohibits the wearing of visible signs of political, philosophical or religious convictions in the workplace with the aim of guaranteeing a regime of neutrality within said company, it can only be justified if this prohibition covers every visible form of expression of those convictions or if it is sufficient that said prohibition is limited to ostensible and large signs provided that it is applied in a consistent and systematic.
In this regard, the Court of Justice emphasizes that “this limited prohibition may affect to a greater extent the followers of those religious, philosophical and non-denominational currents that impose the use of a garment or a large sign, such as a head cover “.
Thus, “when the criterion of the use of signs of said convictions that are ostensible and of great size is inextricably linked to one or more specific religions or convictions, the prohibition of wearing those signs imposed on the basis of said criterion will have the consequence that certain workers are treated less favorably than others because of their religion or belief, which amounts to direct discrimination, which cannot be justified “.
In the event that this direct discrimination is not considered to occur, the Court of Justice indicates that “if a difference in treatment leads to a particular disadvantage for those who profess a religion or have specific convictions, it will constitute indirect discrimination, which can only be be justified if the prohibition covers all visible forms of expression of political, philosophical or religious convictions “.
In this regard, the Court recalls that a regime of neutrality in the company “may constitute a legitimate aim and that, in order to justify objectively a difference in treatment based indirectly on religion or belief, it must respond to a true need of the law. company, such as the prevention of social conflicts or the presentation of the employer in a neutral way in front of the clients “.
Well, in order for this neutrality regime to be effectively followed, “no visible manifestation of political, philosophical or religious convictions can be admitted when workers are in contact with clients or when they are in contact with each other, since the fact of wearing any sign, even a small one, endangers the ability of the norm to achieve the intended purpose “.
Fourth, the Court holds that national provisions protecting religious freedom “may be considered as more favorable provisions when examining the appropriateness of a difference in treatment based indirectly on religion or belief”.
In this regard, the Court recalls that “from the restriction resulting from a measure designed to ensure the application of a regime of political, philosophical and religious neutrality, the different rights and freedoms in question must be taken into account, and that It is for the national courts, in light of all the elements of the proceedings in question, to weigh the present interests and limit the restrictions on the freedoms in question to what is strictly necessary. ”
“This makes it possible to ensure that, when several fundamental rights and principles enshrined in the Treaties are at stake, the assessment of the observance of the principle of proportionality is carried out respecting the necessary reconciliation of the requirements related to the protection of the different rights and principles. in question and the right balance between them, “according to the court.