Headscarves and the Court of Justice of the European Union: Two Opposing Opinions

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The Court of Justice of the European Union (CJEU) has to decide on two cases on the wearing of Islamic headscarves at work. Both concern headscarves, which cover the hair and neck, but which leave the face free. The cases were heard together on the 15 March 2016 and the Advocate General’s (AG’s) opinions have been issued, so now it is up to the CJEU to decide. But this is not made easier because the two opinions (one by AG Kokott and the other by AG Sharpston) seem to contradict each other in a number of ways. This post will consider the difference in the interpretation of ‘genuine and determining occupational requirements’. Both cases concern discrimination on the grounds of religion or belief contrary to Directive 78/2000/EC. Article 4(1) of this Directive determines that:

Notwithstanding Article 2(1) and (2), Member States may provide that a difference of treatment which is based on a characteristic related to any of the grounds referred to in Article 1 shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.

This article thus creates an exception to the prohibition of discrimination in situations where having a protected characteristic is a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate. For example, a Catholic school can require a teacher of religious studies to be Catholic.

The first case (Samira Achbita and Centrum voor gelijkheid van kansen en voor racismebestrijding v. G4S Secure Solutions NV), referred by the Court of Cassation in Belgium, concerns a Muslim woman, who worked for G4S as a receptionist and who was permanently contracted out to a third party. She informed G4S that she wanted to start wearing an Islamic headscarf and was told that this was against the employer’s strict neutrality rule in the workplace. When she refused to take off her headscarf at work, she was dismissed.

The second case (Asma Bougnaoui, Association de défense des droits de l’homme (ADDH) v Micropole Univers SA), referred by the Court of Cassation in France, concerned a design engineer, who wore an Islamic headscarf and was told by her employer to remove this while visiting clients, after a client’s staff member had complained. When she refused to follow this instruction she was also dismissed. Both women challenged their dismissal as discrimination on the grounds of religion or belief contrary to the Directive and both were assisted by the equality body in their country.

However, the questions referred were different. The Belgian Court asked whether there is direct discrimination under the Directive when a Muslim woman is banned from wearing a headscarf when there is a workplace rule which prohibits all employees from wearing outward signs of political, philosophical and religious beliefs in the workplace. The French Court asked whether the wish of a customer to no longer have the services provided by an employee wearing an Islamic headscarf amounts to a genuine and determining occupational requirement under Article 4(1) of the Directive.

AG Kokott’s opinion in the Achbita case was issued on 31 May, while AG Sharpston’s opinion in the Bougnaoui case came out on the 15 July. Although the referred questions were different, both AGs discussed the issue of general and determining occupational requirements in Article 4(1) of the Directive. AG Kokott discussed the issue of direct discrimination and came to the conclusion that the ban on the wearing of the headscarf did not amount to direct discrimination in this case, but that there might be indirect discrimination (paras 56 and 57). But, in case the CJEU decided that there was direct discrimination, she discussed the justifications given in the Directive which could justify direct discrimination, one of which is the special occupational requirement in Article 4(1).

In relation to this, AG Kokott considers that, contrary to what the wording of Article 4(1) may suggest, the occupational requirements need not necessarily be officially laid down in the forms of laws or decrees. It is sufficient that an undertaking applies a rule imposing such a requirement within its organisation (para 67). In contrast, AG Sharpston writes that Article 4 does not apply automatically, but that a Member State must provide for it to do so, which as she points out, France has (para 91). A reading of the article as quoted above suggests that AG Sharpston is correct in this instance. This is also supported by the European network of legal experts in gender equality and non-discrimination in ‘a comparative analysis of non-discrimination law in Europe’, where it writes: ‘both Directives allow national legislation to provide an exception where the characteristic is a ‘genuine and determining occupational requirement’’; and, that ‘all countries surveyed, except Iceland and the Netherlands have chosen to include such an exception within their national legislation’ (page 71).

Both AGs point out that Article 4(1) must be interpreted strictly and both refer to Recital 23 of the Preamble of the Directive, that the exception should apply only ‘in very limited circumstances’ (Kokott, para 72; Sharpston, para 95). Both AGs also look at the expression in Article 4(1) ‘by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out’ but interpret this quite differently.

According to AG Kokott, ‘either of those two elements [nature or context] can in and of itself serve as a ground of justification for a difference in treatment’ (para 73).

‘While the work of a receptionist can as such be performed just as well with a headscarf as without one, one of the conditions of carrying out that work may nonetheless be compliance with the dress code laid down by the employer… in which case the employee carries out her work in a context in which she must refrain from wearing her headscarf’ (para 75).

An undertaking may legitimately decide on a policy of strict religious and ideological neutrality and, in order to achieve that image, demand of its employees, as an occupational requirement, that they present themselves in a correspondingly neutral way in the workplace (para 76). So, although the nature of the job does not require the employee to take off her headscarf, the context might do so. AG Kokott concludes that ‘a ban such as that laid down by G4S may be regarded as a genuine and determining occupational requirement within the meaning of Article 4(1)’ (para 84).

AG Sharpston, on the other hand, points out that the exception for occupational requirements ‘cannot be used to justify a blanket exception for all the activities that a given employee may potentially engage in’ (para 95). She continues that:

‘the narrowness of the derogation is reflected in the wording of Article 4(1). Not only must the occupational requirement be “genuine”, it must also be “determining”. That means … that the derogation must be limited to matters which are absolutely necessary in order to undertake the professional activity in question’ (para 96).

She thus cannot see any basis for what the employer here advances: ‘that the commercial interest of its business in its relations with its customers, could justify the application of the Article 4(1) derogation’ (para 100). Accepting the view of the employer would ‘risk normalising the derogation’ which ‘cannot be right’ as ‘it is intended that the derogation should apply only in the most limited of circumstances’, according to AG Sharpston (para 101). There is nothing ‘to suggest that, because she [Ms Bougnaoui] wore the Islamic headscarf, she was in any way unable to perform her duties as a design engineer’ and thus the requirement not to wear the headscarf could not be a genuine and determining occupational requirement.

So the AGs come to opposite conclusions in relation to the interpretation of Article 4(1). It is submitted that AG Sharpston’s interpretation is the correct interpretation, firstly because it is closer to a strict interpretation and the CJEU has consistently held that derogations from the principle of equal treatment must be interpreted strictly; secondly, and linked to the first argument, it fits in with Recital 23, that the exception only applies ‘in very limited circumstances’; and, thirdly, it is in line with the case law of the CJEU on genuine and determining occupational requirements. The CJEU has, for example, held that the application of the requirement of particular physical capacities is linked to age and can thus be a genuine and determining occupational requirement on the ground of age for firemen (Wolf, paras 40 and 41), pilots (Prigge, para 67) and the police (Vital Perez, para 40 and 41) (see also: Sharpston, para 97). And, the case law in relation to sex as a genuine and determining occupational requirement shows ‘that one must look at both the activity and the context (rather than one or the other in isolation)’ as AG Sharpston remarks (para 98).

It will be interesting to see if the coming judgment(s) of the CJEU will, in the French case, follow its own previous case law and interpret the ‘genuine and determining occupational requirement’ in Article 4(1) in the way AG Sharpston suggests and whether it will mention this at all in Belgian case.

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Jordan says

August 1, 2016

I understand the European approach to "discrimination," which allows discrimination if it is rational, etc., but there is something intellectually disatisfying about the permissibility of discrimination (whether because it is "rational" or "indirect")--perhaps because the text of certain human rights treaties seems to outlaw distinctions and discrimination based on certain categories. The phrase "bases on" in certain treaties has to be applied in context and other choices have to be made, but "a rose by any other name...."

Jordan says

August 1, 2016

Sorry, "based on"

Jordan says

August 1, 2016

p.s. practice and opinio have led to new meanings of text (a normal development otherwise), but the legally trained see things that don't exist (like fictions) and don't see things that do exist.
The US has used the word "differentiation" in alleged contrast to discrimination or distinction -- what must lay persons think?