Saturday, December 10

The European Justice endorses the prohibition of wearing religious signs at work if it is applied in a general way

A company may prohibit the display of religious signs at work. As long as this prohibition is applied in a “general and undifferentiated way to all workers”, and if it does not entail a particular disadvantage for those people who profess a religion or have certain convictions. This was concluded this Thursday by the Court of Justice of the European Union, based in Luxembourg, which establishes that the internal rule of a private company that prohibits wearing any visible sign of religious, philosophical or spiritual convictions does not constitute direct discrimination as long as be applied in a general and undifferentiated manner to all workers.

In its judgment this Thursday, the Court of Justice of the EU indicates that article 1 of the Directive 2000/78 on employment discrimination must be interpreted in the sense that the terms “religion or convictions” that appear in said article constitute the same and unique ground of discrimination that covers both religious convictions and philosophical or spiritual convictions.

In this regard, it recalls that its jurisprudence shows that the ground of discrimination based on “religion or belief” must be distinguished from that based on “political or any other type of opinion”.

The Court of Justice points out that a provision of an internal labor regulation of a company that prohibits workers from expressing verbally, through their clothing or in any other way, their religious or philosophical convictions, of any kind, does not constitute, with respect to workers who seek to exercise their freedom of religion and conscience through the visible use of a sign or clothing with religious connotations, direct discrimination “for reasons of religion or belief” in the sense of Union law, provided that that this provision be applied in a general and undifferentiated manner.

Indeed, given that any person may profess a religion or have religious, philosophical or spiritual convictions, such rule, as long as it is applied in a general and undifferentiated manner, does not establish a difference in treatment based on a criterion inextricably linked to religion or convictions.

The Court of Justice specifies that an internal rule may, however, constitute a difference in treatment indirectly based on religion or belief, if it is shown, which it is for the national court to verify, that the apparently neutral obligation it contains gives rise, In fact, a particular disadvantage for those who profess a religion or have certain convictions.

The Court of Justice adds that a difference in treatment will not constitute indirect discrimination if it can be objectively justified by a legitimate aim and if the means for achieving that aim are adequate and necessary, and recalls at the same time that the mere will of an employer of carrying out a regime of neutrality, although it constitutes, in itself, a legitimate objective, is not sufficient, by itself, to objectively justify a difference in treatment based indirectly on religion or convictions, since the objective nature of such justification It can only be determined when there is a real need for that employer, a need that is incumbent on him to demonstrate.

Finally, the Court of Justice points out that, in the phase of assessing the existence of a justification for indirect discrimination, Union law does not preclude a national court from awarding, within the framework of the weighing of interests divergent, greater importance to those of religion or convictions than to those resulting, in particular, from the freedom of enterprise, provided that this is inferred from its domestic law.

In this regard, it specifies that, however, the discretion granted to the Member States cannot go so far as to allow them or the national courts to divide, into several grounds, one of the grounds of discrimination listed exhaustively in Article 1 of the Directive, under penalty of calling into question the text, context and purpose of the same ground and undermining the useful effect of the general framework for equal treatment in employment and occupation established by Union law.

islamic scarf

The judgment of this Thursday of the CJEU responds to a Belgian case. Since 2018, a lawsuit has been between LF, a Muslim woman who wears the Islamic headscarf, on the one hand, and SCRL, a company that manages social rentals, on the other.

Said litigation deals with the failure to take into consideration the candidacy for an internship presented by LF after the latter had stated, during an interview, that she refused to remove her headscarf in order to comply with the prevailing policy of neutrality in SCRL and reflected in its internal labor regulations.

A few weeks later, the applicant again applied for an internship at SCRL proposing to cover her head with another type of headgear, an opportunity that was denied because no head covering was allowed in the SCRL facilities, whether they were caps , hats or scarves.

Thus, LF reported discrimination to the independent public body responsible for combating discrimination in Belgium, before filing an injunction with the Francophone Labor Court in Brussels: in effect, LF contests the company’s refusal to enter into an internship contract, which, in his opinion, was based directly or indirectly on his religious convictions, and seeks to declare that SCRL violated the provisions of the General Law against Discrimination.

The French-speaking Labor Court in Brussels asked the Court of Justice the question of whether the terms “religion or belief” in the European directive on equal treatment in employment and occupation 1 should be interpreted as two sides of a same protected criterion or, on the contrary, as two different criteria. In addition, it asked the Court of Justice whether the prohibition of wearing a connoted sign or garment, included in the internal labor regulations of SCRL, constitutes direct discrimination on grounds of religion.