A company’s internal rule prohibiting the visible wearing of religious, philosophical or spiritual symbols does not constitute direct discrimination if it is applied in a general and undifferentiated manner to all employees, the Court of Justice of the European Union ruled on Thursday 13 October (Case C-344/20).
In Belgium, a woman of Muslim faith is challenging the fact that her unsolicited application for an internship with a social housing company was not considered after she indicated that she would refuse to remove her Islamic headscarf in order to comply with the neutrality policy promoted by the company. The company then refused a new application for an internship from this person, who proposed to wear a different type of head covering, on the grounds that no head covering (cap, hat, scarf, etc.) was allowed on its premises. The person brought an action before the French-speaking Brussels Labour Court for refusal of an internship contract based directly or indirectly on religious belief, in violation of the Belgian anti-discrimination law.
The Court interprets the Directive (2000/78) establishing a general framework for equal treatment in employment and occupation. In its view, the words ‘religion or belief’ (Article 1) constitute a single ground of discrimination covering both religious and philosophical or spiritual beliefs. In this respect, it recalls that the ground of discrimination based on ‘religion or belief’ is to be distinguished from the ground of ‘political or any other opinion’.
Referring to its case law (cases C-157/15, see EUROPE 11745/12 - C-804/18 and C-341/19 see EUROPE 12763/8), the Court observes that a company’s terms of employment prohibiting workers from expressing their religious or philosophical beliefs in words, clothing or in any other way does not constitute direct discrimination of workers ‘on the [ground] of religion or belief’ within the meaning of EU law if that provision is applied in a general and undifferentiated manner.
Nevertheless, the Court clarifies that the internal rules of the social housing management company may constitute a difference in treatment indirectly based on religion or belief if it is established that the obligation results in a particular disadvantage for persons adhering to a particular religion or belief. It is up to the Belgian justice system to assess this.
The Court added that a difference in treatment would not constitute indirect discrimination if it was objectively justified by a legitimate aim and if the means of achieving that aim were appropriate and necessary.
The mere desire of an employer to pursue a policy of neutrality, which is in itself a legitimate objective, is not sufficient to objectively justify a difference in treatment indirectly based on religion or belief. The employer must demonstrate the existence of a genuine need.
Finally, the Court notes that, when assessing whether there is a justification for indirect discrimination, EU law does not preclude a national court from attaching greater importance, when balancing competing interests, to those of religion or belief than to those resulting, in particular, from the freedom to conduct a business, in so far as this approach stems from its domestic law.
However, the margin of discretion granted to the Member States cannot go so far as to allow them or the national courts to split into several grounds one of the grounds of discrimination (religion or belief, disability, age or sexual orientation) listed exhaustively in Article 1 of the directive, as this would call into question the text, the context and the purpose of the same ground and would undermine the effectiveness of the directive.
See the judgment: https://aeur.eu/f/3ls (Original version in French by Mathieu Bion)