Je Suis Achbita!

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Achbita, decided in March 2017 is not a run of the mill case. It raised what I think are hugely difficult conceptual legal issues. It also comes at a delicate moment in the social and political life of Europe, where the Court of Justice of the European Union is an important actor in shaping the climate and defining the moral identity in and of Europe. I do not believe the Preliminary Ruling of the ECJ comes even close to what one may expect from the supreme judicial voice of justice of our Union in a case of this nature.

The case concerned, as you will know, a Muslim woman whose employer insisted in the name of a neutrality policy of the Company that she may not wear the hijab (a head scarf) to work, and thus she lost her job. I think it is a fair reading of the ruling sent back to the referring Belgian Court that other than checking that the company, without overly burdening itself, could not find a place for Achbita in a back office which would not bring her into contact with the public, the Court had no major problems with the company’s policy compliance with the specific Directive bringing the case within the jurisdiction of European Law and the overriding human rights controlling norms such as the ECHR and the EU Charter of Fundamental Rights.

I will present the case, for reasons which I will explain below, with a slightly different factual matrix.

Chaya Levi lives in Antwerp. She is part of the large Jewish Hassidic community in that town. She, like other members of that community, follows the strict norms of Orthodox Judaism. Some refer to them as Ultra-Orthodox. She works as a receptionist in a general services company which, inter alia, offers reception services to customers in the private and public sectors. As a receptionist she comes into contact with customers. No fault is found with her job performance. Chaya Levi falls in love and marries Moses Cohen of her community. Under Jewish law she now must wear a scarf covering her hair, not unlike the Islamic headscarf. In Antwerp this is an immediate tell-tale sign that she is an observant Jewess.

She is told by her supervisors that under company policy this headscarf would not be tolerated because the visible wearing of political, philosophical or religious signs was contrary to the company’s policy of neutrality (Weiler, ‘Je Suis Achbita’, 28 European Journal of International Law (2017) 989.)

Chaya Cohen (née Levi) refused to remove the scarf and was dismissed. She lodged an appeal before the competent Belgian courts and eventually comes by way of Preliminary Reference to the ECJ and is considered primarily under Directive 2000/78 (Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, OJ 2000 L 303.) The Directive refers in Recital 1 to fundamental rights protected under the ECHR which provides in Article 9 that everyone has the right to freedom of thought, conscience and religion, a right which includes, in particular, freedom, either alone or in conjunction with others, and in public or private, to manifest her religion or belief in worship, teaching, practice and observance.

The Court points out that these same rights are reflected in Article 10(1) of the Charter. The references to the Charter and the ECHR are important since whereas the Directive is concerned specifically with non-discrimination, the Charter and the ECHR more capaciously refer to freedom of religion. Both principles come into play in this decision.

  1. The Framing of the Factual Matrix

As cited, approvingly, by the ECJ, the Belgian Higher Court ‘… noted … that it was common ground that [Chaya Cohen] was dismissed not because of her [Jewish] faith but because she persisted in wishing to manifest that faith, visibly, during working hours, by wearing [a Jewish] headscarf’. (Para. 18. I say ‘approvingly’ because when the ECJ analyses the case its entire focus is on the right under the different legal norms, international and European, to ‘manifest’ one’s religion. See e.g. para. 28. Nowhere does it consider other provisions in the same norms to freedom of practice and observance. (Cf. para. 26 with references therein)).

The first major problem with the approach of the Court is rooted in this very framing of the case.

I invite you to consider two variations of the factual setting as presented above.

Variation 1. Chaya Cohen, in addition to her scarf, also sports a Star of David pendent.

Variation 2. Moses Cohen also works at the company. He, too, sports a Star of David pendent, but in addition wears a yarmulke (skull cap) and has long dangling side locks, which are required under similar strict Jewish law. (You have seen these men around in airports, etc.)

When told of the policy of the company that they may not ‘manifest’ their faith visibly during working hours, both immediately offer to remove the Stars of David. That indeed is an identity marker which manifests their Jewishness. Moses offers to wear a hat and to try and hide his side locks behind his ears. His supervisors are dubious: Who wears a hat indoors if he is not a Jew, they ask? That, too, is a clear tell-tale sign, he is told, and thus contrary to company policy. His side-locks, it turns out, are too long and, alas, are still visible. Reach for the scissors if you wish to keep your job.

Be that as it may, Moses and Chaya try to explain that in wearing the scarf, the yarmulke and the side locks they are not ‘wishing to manifest their faith’. The Star of David can come off at the blink of an eye. But in relation to the scarf and yarmulke they are practising their faith. They have no option by law the observance of which in their eyes overrides, quelle horreur, even European law.

Grant me that there is, phenomenologically-speaking, a difference between the wish to manifest one’s religious identity and the practising and observing of such. Or, put differently, between forbidding someone from manifesting his or her religious identity and actually coercing them to violate religious norms which they consider sacred.

Here are two examples to underline the difference. It is one thing to tell a vegetarian or vegan that they may not show up at work wearing a lapel button proclaiming their belief in animal rights but quite another to coerce them to eat meat. Or telling a gay man or woman that they may not show up with a rainbow tie and telling them they may not actually practise homosexual love.

It follows, in my view, that the ‘common ground’ to which the Belgian Court alluded and which seems to underlie the judgment of the ECJ should not be that:

[Chaya Cohen] was dismissed not because of her [Jewish] faith but because she persisted in wishing to manifest that faith, visibly, during working hours, by wearing [a Jewish] headscarf.

But instead quite differently:

Chaya Cohen was dismissed precisely because of her Jewish faith – a faith which manifests itself in a Nomos which includes (to the bewilderment of some) a duty and commitment to wear a scarf once married.

Or, put differently:

She was dismissed not because she persisted in wishing to manifest her faith but because she persisted in wishing to practise what she, as an adult woman, or her husband (variation 2), as an adult man, held to be their religious legal duty as an expression of loyalty to, and love of, the Almighty and, born into an eternal Covenant to which they choose to remain loyal.

After all, Moses wears his yarmulke even when alone at home. To whom is he manifesting his religion then? ‘To God’ would be the only dignified answer. One might raise the philosophical objection – replicating the debate of aims and effects in international trade law – that Chaya was not dismissed because of her Jewish faith but simply in ‘neutral’ application of company policy. I think this is splitting hairs. If, say, Columbia Law School had in place a similar policy of ‘neutrality’ it would mean that the illustrious Lou Henkin, one of the ‘fathers’ of international protection of human rights law, would have lost his job. I assure you he would not have removed his yarmulke. If asked why he lost his job, he most likely would have answered ‘because of my faith’; ‘because I am an observant Jew’. And if, hypothetically, the ECJ were to adopt a similar rule of neutrality as regards the attire of lawyers appearing before it, the distinguished British barrister, Shaheed Fatima QC would be excluded. I assure you she, too, would not remove her hijab.


Editor’s note: The rest of this post can be read here

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Jens Iverson says

February 20, 2018

This is an enjoyable read. I'd be curious to hear you amplify your analysis with respect to public accommodations/anti-discrimination law and the religious beliefs of those selling goods and services. The US courts are very reluctant to do the kind of quality/centrality of belief parsing you suggest, and rightly has strong public accommodations protections. This has lead to the "Masterpiece Cakeshop" case in the US. Do you think your analysis has any application to those sorts of disputes?

Franck says

February 24, 2018

Thank you very much for the post.
It seems rather a minor point but are you sure Louis Henkin "would not have not removed his yarmulke" ?
I cannot find one single picture of Louis Henkin wearing a yarmulke and it seems also that he wore it only in the synagogue. This is mentioned in "Jewish Justices of the Supreme Court" and there is also passage underlining that he was very discrete when it comes to religion and that Justice Frankfurter for whom he clerked "may not have even noticed that (he) was keeping the religious laws" (p. 170).

Andrew Filis says

March 3, 2018

Thank you for your post.

I'd be really reticent to lend any intellectual support to, normalise and validate, the distinction between 'manifestation' and 'practice'. 'To manifest/express' one's faith could serve a number of subjective purposes - including 'to practice', 'to affirm', 'to promote', and so on. It also serves a variety of 'objective' purposes, including the the object(s) and purpose(s) of the ECHR, and of the broader system of international human rights law and so on -- all valid purposes existing behind what should be upheld as an inscrutable parapet (namely, that of freedom of expression).

Validating hierarchical categories of purpose behind the exercise of the right could further undermine and erode that fundamental right.