Tuesday, 15 March 2016

Wearing the veil at work: Achbita and Bougnaoui - Can a duty to reasonable accommodation be derived from the EU concept of indirect discrimination?

Sara Benedi Lahuerta, Lecturer in Employment Law, Southampton Law School

The Islamic headscarf issue has finally reached the Court of Justice of the European Union (CJEU) through two preliminary references, Achbita and Bougnaoui, issued by Belgian and French courts, respectively. While the CJEU has –directly or indirectly– dealt with religious freedom issues before in the context of the internal market (see eg Van Duyn v Home Office) or the right to asylum (see Bundesrepublik Deutschland v Y and Z), this is the first time that the CJEU has ever been asked about religious discrimination under Directive 2000/78 (the 'employment equality' Directive), although the latter prohibits religious discrimination in employment within the EU since 2000. In addition, these are the first two cases where the CJEU is confronted with the issue of whether restricting the use of the Islamic headscarf at work can amount to religious discrimination. In contrast, several national jurisdictions* and the European Court of Human Rights (ECtHR) (see eg Ebrahimian v France) have already dealt with this matter.

This thus is an excellent opportunity for the CJEU to position itself as regards the ECtHR’s case law on religious dress and to clarify how the employment equality Directive should be interpreted in religious discrimination instances. Indeed, both cases have been assigned to the Grand Chamber, which signposts their potential importance, and the hearings are scheduled for today.

Background of the disputes

These two cases have some common features: the applicants are Muslims working for private companies; they both used to wear the hijab (ie the Islamic veil that covers the head and the chest, but not the face) at work; and, in both cases, their employer considered that this was in conflict with the respective organisations’ neutrality policy, so after refusing to remove the hijab at work, the applicants were dismissed. Bougnaoui and Achbita should thus be distinguished from the ECtHR case SAS v France (see a commentary here), which concerned the French ban to wear the burqa and the niqab (ie the Islamic veils that cover the full body, including the face) in public spaces (and not within a private company, as it was the case in Bougnaoui and Achbita).

On the other hand, however, there are also some differences between these two cases. Firstly, Bougnaoui was wearing the headscarf from the outset, that is, from the very first day she was working for the employer (Micropole Univers). In contrast, Achbita only decided to start wearing it during working hours after being in employment for three years with the company ‘G4S Secure Solutions’ (she nevertheless always wore it outside work). Secondly, Bougnaoui worked as an engineer who spent some of her working time at Micropole Univers’ premises, and some other time working at clients’ premises. The company’s position was that she should not wear the hijab when she had to be in contact with clients (either at the company’s own premises or at the clients’ offices), but she was allowed to wear the hijab the rest of the time. Conversely, Achbita, who worked as a receptionist, was not allowed to wear the headscarf at all. Finally, while in Bougnaoui there was an express complaint of a client who was ‘inconvenienced’ by the hijab and requested that she did not wear it the next time, according to the information publicly available, in the Achbita case there was not an explicit client complaint.

The questions asked by the referring courts are also different. In Achbita, the Belgian court asks whether the employer’s neutrality rule amounts to direct discrimination, while in Bougnaoui, the French court asks whether the neutrality requirement can amount to an occupational requirement (art 4(1), employment equality Directive) if it is a client’s demand.  In my view, however, the central issue at stake in both claims is whether an employer’s duty to accommodate religious practices can be derived from the EU concept of indirect discrimination (art 2(2)(b), employment equality Directive).

The questions asked by the national courts

Direct or indirect discrimination?

Neutrality rules are normally classical examples of the type of policies that can amount to indirect discrimination. Typically, they are not introduced because some employees profess a given faith, but rather to preserve the organisation’s image or the principle of secularism. So they usually are neutral on their face and they apply to everyone, but in practice they can put at disadvantage certain groups, eg people who feel compelled to express their religious believes through certain religious practices or dresses. Indeed, in this case, both claimants were arguably put at disadvantage by the neutrality policies, and so would have been anyone trying to wear a religious symbol or dress in their respective workplaces. It thus seems relatively straightforward that these neutrality policies can amount to indirect discrimination.

However, there may be instances where a particular policy or practice can amount to either direct or indirect discrimination depending on the specific factual circumstances surrounding the case. As the CJEU has recently noted, the key element to differentiate between direct and indirect discrimination is that: ‘[i]f it is apparent that a measure which gives rise to a difference in treatment has been introduced for reasons relating to [the protected characteristic], that measure must be classified as ‘direct discrimination’ within the meaning of [EU law]. By contrast, indirect discrimination […] does not require the measure at issue to be based on reasons of that type. […] It is sufficient that, although using neutral criteria not based on the protected characteristic, it has the effect of placing particularly persons possessing that characteristic at a disadvantage’ (CHEZ Razpredelenie Bulgaria AD, paras 95-96).

The information publicly available on the Achbita case suggests that the company’s neutrality policy existed before she started wearing the headscarf at work. However, it seems that after the conflict with the claimant arose, and ‘[f]aced with the persistence of the employee to wear the headscarf during working hours, the company’s board of directors decided to amend work regulations in order to forbid the workers to wear any visible symbol expressing their political, philosophical or religious beliefs’.** This suggests that there might be a causal link between the employer’s decision to ban wearing visible religious symbols and Achbita’s decision to start wearing the hijab at work. While this is a matter of proof to be considered by the national court, if there is enough evidence to suggest that this prohibition was introduced because of the religious conflict that arose between Achbita and the company, it could arguably amount to direct discrimination.

Can a client’s ‘neutrality requirement’ amount to an occupational requirement?
Whether the policies at stake in these two cases amount to direct or indirect discrimination, at the justification stage, the employers could try to rely on article 4(1) of the employment equality Directive to argue that not wearing the headscarf at work is an occupational requirement, in other words, that it is genuinely necessary ‘by reason of the nature’ of the job ‘or the context in which [it is] carried out’, and that requiring this is legitimate and proportionate. However, it seems that this argument was only put forward in Bougnaoui.
The fact that in that case a client requested that in the future the claimant did not wear the hijab resonates with the Firma Feryn case, where a Belgian company director publicly stated that he was not willing to hire Moroccans because he had to comply with its ‘customers requirements’, who did not want domestic alarm systems being installed by ‘immigrants’ (AG Poiares Maduro’ Opinion in Firma Feryn, para 4). In that case, AG Poiares Maduro concluded that not hiring Moroccans for that reason amounted to direct discrimination –which was confirmed by the Court– and he noted that the fact that customers were ‘unfavourably disposed towards employees of a certain ethnic origin’ simply ‘illustrate[d] that “markets will not cure discrimination” and that regulatory intervention is essential’ (paras 18-19 of the opinion).
In Bougnaoui, not wearing a headscarf was not genuinely necessary and determining to successfully perform the substance of the applicant’s job as an engineer. Furthermore, the occupational requirement exception is only applicable to ‘very limited situations’ (recital 23, employment equality Directive) and exceptions to the principle of equal treatment should be interpreted strictly (Prigge v Lufthansa, paras 56, 71). Therefore, the client’s request that Bougnaoui should not wear the headscarf should not be interpreted as an acceptable occupational requirement, as defined in article 4(1) of the employment equality Directive. Although the employer could also try to rely on article 2(5) of the Directive to justify this policy arguing that it was necessary to protect the rights and freedoms of others, the mere fact that the client did not like watching the applicant wearing the headscarf does not seem a legitimate reason to claim that third parties’ ‘rights and freedoms’ were affected.

The key underlying issue: can a duty to accommodate religious practices be derived from the EU concept of indirect discrimination?

Under EU law, the employer has a duty to reasonably accommodate disabled persons (art 5, employment equality Directive), and to some extent pregnant women (Directive 92/85/EEC, art 5(1)). While EU law does not formally recognise this duty for any other ground, some academics argue that it could be derived from the concept of indirect discrimination,*** as it has been the case in Canada (Ontario Human Rights Commission (O’Malley) v Simpsons-Sears [1985] 2 SCR 536). This could be especially suitable for cases where religious practices clash with the protection of a legitimate objective or with the protection of the rights and freedoms of others.
Indeed, while the ECtHR has not explicitly recognised a duty of reasonable accommodation for religious believes, in Thlimmenos it stated that:
The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different. (Thlimmenos v Greece, para 44)
This effectively means that states should accommodate persons who have different needs unless there is an ‘objective and reasonable justification’ not do it. In other words, the ECtHR suggests that the ‘reasonableness’ of accommodation should be analysed as part of the objective justification test which is inherent to indirect discrimination and entails considering whether the failure to treat the claimant differently pursues a legitimate aim and is proportionate.
The ECtHR has been reluctant to apply this principle in religious discrimination cases in the education sector  (see eg Dahlab v SwistzelandSahin v TurkeyDogru v France) and in the public sector (see eg X v UK, Kosteski v Former Yugoslavia Republic of Macedonia, Ebrahimian v France). However, when the ‘accommodation conflict’ arises outside an educational environment and between private parties (ie when there is no need to preserve state’s neutrality), the ECtHR seems to put a lower threshold to find that the rule at stake is not justified, and thus, the religious practice should be accommodated. That was the case in  Eweida v UK , where –like in Bougnaoui and Achbita– the religious accommodation conflict arose within a private company.
Within the EU, the CJEU has outlined the principle of equal treatment as requiring not only that identical situations are treated in the same manner, but also that different situations are treated differently (see eg Joint Cases T-18/89 and 24/89, TagarasCase T-10/93, A v Commission), which echoes the ‘reasonable and objective justification’ requirement recognised by the ECtHR in Thlimmenos. Accordingly, the same reasoning could be followed by the CJEU in a case concerning a religious accommodation conflict. In fact, in Prais the CJEU already accepted that the accommodation of religious believes was ‘desirable’, although not required on the facts. Prais was a Jewish applicant to an EU civil service competition. She asked for the date to be changed because it coincided with a Jewish holiday that forbids travelling and writing. When her request was rejected, she argued that it amounted to a violation of the Staff Regulations, which established that candidates should be selected without distinction on grounds of religion. The Court recognised that the appointing authority ‘should […] endeavour to avoid such [religious] dates’, but because she had not informed the Council before fixing the date, the Council was not obliged to accommodate Prais’ believes (paras 16-18).
Against this framework, and given the parallel between the ECtHR and the CJEU’s definitions of equal treatment, it could be expected that in Bougnaoui and Achbita the latter will follow the approach of the ECtHR in Thlimmenos and Eweida to recognise –at least tacitly– that a duty to reasonably accommodate religious differences can be derived from the concept of indirect discrimination. It will be interesting to see whether the Grand Chamber takes this route or it follows a different approach to address this issue.

Photo credit: Mizrahilaw.com
Barnard & Peers: chapter 9, chapter 20

* See eg the Danish case Føtex, 22/2004 No.U.2005.1265.H (Supreme Court, 21 January 2005); the UK case Azmi v Kirklees MBC [2007] ICR 1154 (EAT); the Belgian case Hema (Tongres Labour Court, 2 January 2013) and the French case Association Baby Lou, decision No S 13/02981 (Court of Appeal of Paris, 27 October 2013).
*** L Waddington, ‘Reasonable Accommodation’ (2011) 36 NTM/NJCM-Bulletin 41, 49; K Alidadi, ‘Reasonable accommodation for religion and belief: adding value to art. 9 ECHR and the EU’s anti-discrimination approach in employment?’ (2012) 37 ELRev 693, 707-710; S Benedi Lahuerta, ‘Taking EU Equality Law to the Next Level: in Search of Coherence’ (2016) European Labour Law Journal (forthcoming).

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