The Court of Justice of the European Union, in a judgment of 13 October 2022, has again ruled on the wearing of clothing with religious connotations in the workplace.

 

The preliminary ruling arise from a dispute concerning the failure to take into consideration the application, submitted by a woman wearing an Islamic headscarf, for a traineeship at a company managing social housing. The candidate had openly declared during the interview that she would not remove her headscarf at work, refusing to comply with the neutrality policy promoted by the company. For this reason, her application was not taken into consideration.

After reporting discrimination to the independent public body responsible for combating discrimination, the woman appealed to the Tribunal du travail Francophone in Brussels, complaining about the non-conclusion of the traineeship contract, allegedly due to discrimination on the grounds of religious conviction, and sought a declaration of violation of the provisions of the general law against discrimination. In the light of the European case-law on the subject, the Belgian Court referred the matter to the Court of Justice of the European Union for a preliminary ruling, asking whether the terms 'religion or belief' in Council Directive 2000/78 of 27 November 2000 on equal treatment in employment and occupation must be interpreted as two aspects of the same protected criterion or, on the contrary, as two separate criteria. The Court of First Instance also asked the Court of Justice whether the prohibition on wearing a sign or connotative garment, contained in the company's rules, constitutes direct discrimination based on religion.

 

The Court of Justice first clarifies that the expression 'religion or belief' in the directive referred to constitutes one and the same ground of discrimination, which includes both religious beliefs and philosophical or spiritual convictions.

The European Union judges, then, emphasize that the provisions of Directive 2000/78 must be interpreted as meaning that the prohibition on wearing in the workplace any visible sign relating to political, ideological or religious convictions, resulting from an (internal) rule of a private undertaking, does not constitute direct discrimination on grounds of religion or belief against workers who follow dress codes on account of religious obligations, provided that that provision is applied in a general and indiscriminate manner. In other words, the inhibition of religious symbols in the workplace is possible if this does not lead to unequal treatment between members of different faiths or beliefs.

The Court of Justice emphasized that a domestic rule may (potentially) constitute a difference of treatment indirectly based on religion or belief if it is demonstrated by the national Courts that the apparently neutral obligation entails a disadvantage for persons adhering to a certain religion (or ideology). Recalling their own case-law precedents, however, the Luxembourg Court clarified that such a difference in treatment would not constitute indirect discrimination if it was objectively justified by a legitimate aim and the means employed to achieve it were appropriate and necessary. An employer's desire to display, in relations with both public and private customers, a policy of political, philosophical or religious neutrality can be regarded as legitimate only if it corresponds to a real need on the part of the employer, which is for the latter to prove.

 

(Comment by Alessandro Cupri=