From time to time, the Court of Justice of the European Union is called upon to rule, on a pre-judicial basis, on disputes concerning the wearing of the so-called “Islamic headscarf” in the workplace or even in public places. The importance of the issue within the Union is very uneven. It is particularly significant in countries where there are large population contingents with more or less proximate origins in North Africa or the Middle East, where the Islamic religion prevails. This is particularly the case in France and Belgium, where there is also a very strong and culturally rooted secular sensibility.
As is well known, the issue invariably raised concerns complaints of direct discrimination (based on religion) or indirect discrimination (based on sex), in the light of the provisions of Council Directive 2000/78, which establishes a general framework for equal treatment in employment and occupation. And it is curious that the requests for pre-court rulings are invariably assigned to the same judge – Luxembourg’s F. Biltgen – who is the “father” of the Court’s doctrine on such a delicate subject.
The most recent CJEU ruling on the subject, dated November 28 (case C-148/22, Commune d’Ans), deals precisely with a situation that arose in Belgium and, what’s more, within the public administration. The complainant has been working for the Municipality of Ans since 2016, as head of a service with no contact with the public. In 2021, she asked for permission to wear a headscarf at work, which was refused several times. Claiming an obligation of “absolute neutrality”, the municipality has even introduced a ban in its working regulations on officials wearing “any visible sign that could reveal their convictions, particularly religious or philosophical ones, whether or not they are in contact with the public”.
The employee in question took legal action against this position of the municipality, which, in her opinion, resulted in a violation of her religious freedom and discrimination on the grounds of her religion. The Liège labor court divided the problem into two questions for the Court of Justice: is there (direct or indirect) discrimination on the grounds of religion in this case, or is there (indirect) discrimination on the grounds of sex?
The CJEU’s judgment refrained from dealing with the second question, on the grounds that the request made by the Liège Court lacked consistency and factual information.
As for the first, the Court recalled its general doctrine on the subject, which has been built up over the years in successive decisions: a ban on the use of religious signs or symbols may constitute indirect discrimination if it is found that such a ban represents a specific disadvantage for people who profess a particular religion; but not if it is “objectively justified by a legitimate aim, and the means used to achieve it (in this case, the prohibition) are appropriate and necessary”.
As the CJEU understands it, a policy of “absolute neutrality” on the part of a public administration “with a view to establishing a totally neutral administrative environment within it may be considered justified by a legitimate objective”, provided that the prohibitive rule deriving from this policy “is appropriate, necessary and proportionate” in the light of the “different rights and interests at stake”. In other words: the Directive 2000/78 does not oppose it without more.
Fortunately, this is not a problem that is particularly prevalent in Portugal, but there is no guarantee that it won’t arise in the future.
António Monteiro Fernandes @ Of Counsel, DCM | Littler
