A bad day for religious freedom

Banning the wearing of religious symbols and garb in a place of work, like a cross or a headscarf, is not discrimination the EU’s highest court, the European Court of Justice (ECJ) has found in a ruling issued last week. This is a bad decision, but fortunately it does not directly affect national law.

If a Muslim employee of an Irish company was told she could not wear a headscarf at work, ultimately, she could take a case against the company to the Supreme Court and under our Constitution she just might win her case. We would certainly hope that is what would happen.  The ECJ ruling simply means that she would not be able to assert any rights under the European Charter of Fundamental Rights. But to repeat, this does not mean she could not assert her rights under the Irish Constitution.

The case before the ECJ involved a Muslim lady, Samira Achbita, a receptionist employed in Belgium by a company called ‘G4S’. She was dismissed because of her intention to wear the headscarf in her workplace in accordance with her religious beliefs. G4S provides reception services in the public and private sectors and its employees are “prohibited, in the workplace, from wearing any visible signs of their political, philosophical or religious beliefs and/or from engaging in any observance of such beliefs”.

Ms Achbita challenged her dismissal in the Belgian courts and the Court of Cassation of Belgium asked the ECJ “if the prohibition of wearing, as a female Muslim, a headscarf at the workplace does not constitute direct discrimination, where the employer’s rule prohibits all employees from wearing outward signs of political, philosophical and religious beliefs at the workplace”. The Belgian court queried whether the European Union directive on equal treatment in employment and occupation came into play here.

The ECJ has ruled that the internal rule of the company does not introduce a difference of treatment that is directly based on religion or belief, for the purposes of the directive. This is based on the fact that the G4S’s rule covers any manifestation of beliefs without distinction and thus treats all employees in the same way by requiring them to dress neutrally. It is important to note that the Court also claimed that the national court might conclude that the internal rule might constitute indirect discrimination because the apparently neutral obligation it imposes might result to a particular disadvantage for a person adhering to a particular religion. It is for the Court of Cassation of Belgium to check if such indirect discrimination may be objectively justified by a legitimate aim, such as the pursuit of a policy of neutrality, provided that the means of achieving this aim are appropriate and necessary. The ECJ provides guidance but the national court hearing the case has sole jurisdiction to determine whether the G4S’s internal rule is justified by a legitimate aim and if it meets the requirements of appropriateness and necessity.

The ECJ also asked the Belgium court to ascertain if it would have been possible for GS4 to offer Ms Achbita a post not involving any visual contact with customers, instead of dismissing her.

The ECJ’s ruling has provoked strong reactions. The Amal Women’s Association, a Dublin based Muslim women’s organisation, condemned it as did Alliance Defending Freedom and the Church of England.

The Amal Women’s Association, a Dublin based Muslim women’s organisation, has stated “It is clear from the ruling that it is faith communities that are no longer welcome. The backing of this ruling by the highest court of justice in Europe is, in our opinion, a serious threat to the principles of equality, justice and freedoms that the EU states it advocates. Muslim women are already one of the most targeted groups in Europe. In the workplace, they face a triple penalty because of their gender, ethnicity and religion.”

 

“Nobody should be forced to choose between their religion and their profession. A Court claiming to be a champion of human rights should safeguard the fundamental right to freedom of conscience, religion, and belief rather than undermining it. Citizen’s deeply held convictions should be reasonably accommodated by their employers,” said AdinaPortaru, Legal Counsel for Alliance Defending Freedom International in Brussels.

 

A Church of England spokesman said: “This ruling raises significant questions about freedom of religion and its free expression. Whether it be Sikhism and the wearing of turbans and kara through to the wearing of a cross. In preferencing ‘freedom to conduct a business” above the free expression of faith the ruling potentially places corporate interest above those of the individual.”

However, Andrea Williams, Chief Executive of the Christian Legal Centre, reminded us that the ruling does not affect national law. She said: “Precisely stated, the Court of Justice made no ruling on the legality of prohibiting the wearing of religious symbols at work, it simply clarified a point of law in relation to defining the Directive, and left it to the national courts to address the substantive questions involved. …. Yesterday’s ruling in Luxembourg has not changed the law in the United Kingdom or anywhere else in the European Union. The Eweida ruling [which involved a woman who wore a small cross on her work uniform] is still the law of the land and the Christian Legal Centre is here to defend anyone who is told by their employer that they are not permitted to wear their cross at work.”

In my view the G4S’s rule is not reasonably and objectively justified and it is a case of indirect discrimination. Its policy of neutrality misunderstands the profound meaning of religious freedom and how this freedom it is different from the expression of political or philosophical beliefs. The ban is not necessary and other less restrictive means could have been employed to achieve the same end.

For many people religion is a fundamental component of their identity, as persons and as members of a community. The measure imposed by GS4 restrict their rights and prevent the expression of their identity.  Some religions require a specific dress code, others encourage the public expression of the faith through signs such as garments or objects (medals, crosses, pictures, scapulars, etc.). There are situations where health or security issues associated to a specific job or task might entail a necessary limitation in wearing a certain piece of cloth but a headscarf worn by a receptionist does not interfere with any of her duties. The ban imposed by G4S to wear religious symbols is not a genuine and determining occupational requirement.

States can restrict some specific rights for certain legitimate purposes such as to protect public safety, health or morals. The most common case is the ban in certain places like schools, or in public places, of anything that covers the face. Such a ban is justified because those dresses prevent the identification of those who wear them. A balance must be found between legitimate concerns for security and genuine expressions of religious belonging.

The ban imposed by G4S is aimed at pursuing a policy of neutrality within the company. However, in comparing religion to philosophy or politics it misunderstands its very nature. How many political or philosophical ideologies require a particular dress code to be worn all the time by their followers as a requirement of membership of that community? Is there a particular sign that all members of a political party in Europe are asked to wear?

Obviously, it makes perfect sense to ban, for instance, a “Repeal the 8th“ badge from a workplace but it is for the same reason that it makes sense to ban a t-shirt that says “Repent or you will go to hell!” or “Join Scientology”.  A political badge promotes a specific message that the company might not agree with. The headscarf does not so. The main purpose of wearing a kirpan (turban) for a Sikh or a headscarf for a Muslim woman is not to actively push a message on divisive topics or to promote a political candidate. It is a way to live religious faith, and so it is wearing a little cross for Christians or the kippah for Jews.

G4S’s interpretation of neutrality does not constitute an objective and reasonable justification for imposing on employees a limitation to the expression of their religious identity.

Concerns should be raised also regarding the proportionality of the measure. As the ECJ suggested, if the expression of religious freedom does not match with the requirements necessary for a certain task, rather than being dismissed, the worker should be employed in a different task. A solution should be found that accommodates both the religious expressions of the workers and the general internal rule of a private undertaking.