Professor of law, Deputy Director, UMR 7074 Centre de théorie et analyse du droit, Université Paris Nanterre,
1 ECJ 14 March 2017, Case C-188/15, Asma Bougnaoui & ADDH v Micropole SA and ECJ 14 March 2017, Case C-157/15, Samira Achbita & Centrum voor gelijkheid van kansen en voor racismebestrijding v G4S Secure Solutions NV.
2 The opinions were delivered on, respectively, 13 July 2016 and 31 May 2016.
3 Criticism seems to be the dominant tone of the first wave of scholarly commentary triggered by these cases. See, for instance, E. Brems, ‘European Court of Justice Allows Bans on Religious Dress in the Workplace’, <https://iacl-aidc-blog.org/2017/03/25/analysis-european-court-of-justice-allows-bans-on-religious-dress-in-the-workplace/>, visited 11 October 2017; T. Ufarte, ‘La liberté de conscience face au culte de la liberté d’entreprise prôné par la CJUE : Une nouvelle guerre de religion ?’, Revue des droits de l’homme [En ligne], Actualités Droits-Libertés, available at <http:// revdh.revues.org/3056>, visited 12 July 2017; S. Jolly, ‘Achbita & Bougnaoui: A Strange kind of Equality’, available at <www.cloisters.com/blogs/achbita-bougnaoui-a-strange-kind-of-equality>, visited 11 October 2017; S. Ouad Chaib and V. David, ‘European Court of Justice keeps the door to religious discrimination in the private workplace opened’, available at <https://strasbourgobservers.com/2017/03/27/european-court-of-justice-keeps-the-door-to-religious-discrimination-in-the-private-workplace-opened-the-european-court-of-human-rights-could-close-it/>, visited 11 October 2017.
4 On which, see for instance Khaitan, T., A Theory of Discrimination Law (Oxford University Press 2014) in particular p. 153.
5 This point is also made by Laulom, S., ‘Un affaiblissement de la protection européenne contre les discriminations’, Semaine Sociale Lamy, 27 March 2017, n°1762 ; see also Ouad Chaib and David, supra n. 3.
6 Some have argued in comparable instances that discrimination is ‘covered’: see Yoshino, K., Covering: the Hidden Assault on our Civil Rights (Random House 2007).
7 Ouad Chaib and David, supra n. 3; see also E. Brems, supra n. 3: ‘In that sense, the judgment can be read as a “how-to” for employers wishing to discriminate against headscarf wearers: introduce a neutrality policy that applies to all types of religious dress; apply it consistently; apply it only to front-office employees; and if you want to dismiss a person, make sure to motivate why you cannot offer that person a back-office job’. Note also the provocative title of the New York Times article: ‘Legalizing Discrimination in Europe’, 15 March 2017.
8 In §34 of the Achbita ruling, the ECJ expresses the view that ‘it is conceivable’ that such a rule might affect some religions more than others. As Gareth Davies notes, this is largely absurd, for what really is inconceivable is that it would not: G Davies, ‘Achbita v. G4S: Religious Equality Squeezed Between Profit and Prejudice’, European Law Blog (6 April 2017) available at <https://europeanlawblog.eu/2017/04/06/achbita-v-g4s-religious-equality-squeezed-between-profit-and-prejudice/>, visited 11 October 2017.
9 To the extent that ‘the ruling could be understood as confirming that the mere wish of a company to present itself in a neutral way is an objective justification for a different treatment of employees’ [emphasis added]: M. Steijns, ‘Achbita and Bougnaoui: Raising More Questions Than Answers’, available at <https://eutopialaw.com/2017/03/18/achbita-and-bougnaoui-raising-more-questions-than-answers/>, visited 11 October 2017.
10 Wolmark, C., ‘Peut-on concevoir la neutralité dans l’entreprise?’, Revue de droit du travail (2017) p. 235 : ‘la neutralité, une politique marketing’.
11 Calvès, G., ‘Religion au travail: que nous enseigne la CJUE ?’, 8 Feuillet Rapide Social (2017).
12 On this issue see Alidadi, K., ‘Out of sight, out of mind? Implications of routing religiously dressed employees away from front-office positions in Europe’, 1 Quaderni di diritto e politica ecclesiastica (2013) p. 87 .
13 Furthermore, among those who do not attempt to invoke the relevance of the concept of religious discrimination as such, the normative reasons for its validity remain debated. For a recent contribution denying the foundational nature of the concept of ‘autonomy’ for religious freedom, see Ahmed, F., ‘The Autonomy Rationale for religious freedom’, 80(2) Modern Law Review (2017) p. 238 .
14 See ECJ 10 July 2008, Case C-54/07, Centrum voor gelijkheid van kansen en voor racismebestrijding v Firma Feryn NV.
15 See for instance Calvès, G., ‘Les discriminations fondées sur la religion : quelques remarques sceptiques’, in E. Lambert-Abdelgawad, T. Rambaud (eds.), Les discriminations religieuses en Europe (SLC 2009) p. 9 .
16 §116. AG Sharpston, by constrast, argues in her opinion that religion ought not to be distinguished from sex or skin colour.
17 Cumper, P., ‘The public manifestation of religion or belief: challenges for a multi-faith society in the 21st century’, 4 Current Legal Issues: Law and Religion (2001) p. 311 .
18 Hennette-Vauchez, S., ‘Is French laïcité still liberal? The Republican project under pressure (2004-2016)’, 17 Human Rights Law Review (2017) pp. 285-312 .
19 From among the many references, see Scott, J.W., The Politics of the Veil (Princeton University Press 2007); Fernando, M., The Republic Unsettled (Duke University Press 2014); Hennette-Vauchez, S., ‘Genre et religion: le genre de la ‘nouvelle laïcité’ , in S. Hennette-Vauchez, M. Pichard, D. Roman (eds.), REGINE: La loi & le genre. Etudes critiques de droit français (CNRS) p. 715 .
20 In fact, as is noted by Eva Brems, it is quite astonishing that the Court should silence this contextual element of the rulings. In her words: ‘It its bewildering to read a judgment of a supranational court ruling on fundamental rights that discusses the issue of Islamic headscarf bans without any reference to either the Europe-wide context of Islamophobia, or the widespread existence of negative stereotypes about Muslim women, and in particular those who wear Islamic dress. (…) What some may perceive as remaining on “neutral technical ground” is for others an expression of an ivory tower mentality. As illustrated by the following anecdote: when ECJ President Lenaerts read the judgment aloud in his native language Dutch, he read “Islamist headscarf” instead of “Islamic headscarf”. In Dutch, this is only one letter extra (Islamitisch/Islamistisch), yet anyone who has some degree of familiarity with debates on Islam is aware of the crucial difference. Not the ECJ President, apparently’. In fact, the criticism can be made harsher still, for not only does the Court not refer to the concerns raised by anti-religious sentiment in general and Islamophobia in particular: AG Kokott seems to have herself participated in the legitimation of a number of amalgams, as the opening lines of her opinion inexplicably insist on ‘the social sensitivity inherent in [the] issue’ at stake (the firing of Muslim women for wearing their headscarves at work) and ‘the current political and social context in which Europe is confronted with an arguably unprecedented influx of third-country migrants and the question of how best to integrate persons from a migrant background is the subject of intense debate in all quarters’. On that note, it is worth noting that far from having anything to do with issues of integration, the two cases that reached the ECJ pertained to two female workers who were well-integrated, notably through their employment. If at all, the issue here is one of the judicial contribution to dis-integration, as the Court creates a legal framework in which these female workers can be fired.
21 See above.
22 V. Valentin, ‘Quelles perspectives pour la religion dans l’entreprise?’, Revue des droits et libertés fondamentaux (2017) available at <www.revuedlf.com/droit-social/quelles-perspectives-pour-la-religion-dans-lentreprise/>, visited 11 October 2017.
23 In fact, a French labour law specialist has underlined the fact that the Cour de cassation had already ruled that customer preference could not be taken into account and that direct discrimination could not be justified by such considerations. Wolmark then further suggests that the French Court’s referral to the ECJ was thus to be understood as a willingness to disturb the solution reached in the much-debated Baby Loup case (on which see Hennette-Vauchez, supra n. 18), implicitly increasing the leeway of employers to restrict religious freedom in the workplace: see Wolmark, C., ‘Le foulard dans l’entreprise: la CJUE invitée dans le débat’, 7–8 Droit Social (2015) p. 648 .
24 In 1960 in Greensboro, North Carolina, Joseph McNeil, Franklin McCain, Ezell Blair Jr and David Richmond, four black men, organised sit-ins at the Woolworth department store’s lunch counter as a peaceful protest against the segregationist policies of the establishment. Whilst their sit-ins were neither the first nor the only ones, they have remained amongst the most famous of the civil rights movement.
25 H. Arendt, ‘Reflections on Little Rock’, Dissent, 1959. This is a very stimulating, albeit complex and much-debated, text in which Arendt reacts to the deployment of federal troops to enforce Brown v Board of Education and the ensuing unrest in several Southern localities. Her text seeks to delineate the distinctions between ‘the public’, ‘the social’ and ‘the political’ and discusses the differentiated legitimacy of anti-discrimination laws to intervene in these three spheres. Although her text raises questions as to Arendt’s insensitivity to issues of racial injustice and segregation (on which, see R. Ellison and H. Bentouhami, ‘Le cas de Little Rock: Hannah Arendt et Ralph Ellison sur la question noire’, 10 Tumultes (2008) p. 268 or, more recently: M. Burroughs, ‘Hannah Arendt, Reflections on Little Rock and White Ignorance’, 3(1) Critical Philosophy of Race (2015) p. 52), it shines an interesting light on many contemporary, contentious issues pertaining to the scope and legitimacy of anti-discrimination law. See Morey, M., ‘Reassessing Arendt’s “Reflections on Little Rock”’, 10(1) Law, Culture and the Humanities (2014) pp. 88-110 .
26 It is also in striking contrast with predictions, largely at odds with the merits of the rulings examined here, that Directive 2000/78 ought to be interpreted as carving out a duty that weighs on employers to accommodate employees’ needs, comparable if not identical to the duty that the Directive expressly spells out with regard to disabilities; see for instance: Ringelheim, J., ‘Adapter l’entreprise à la diversité des travailleurs: la portée transformatrice de la non-discrimination’, 1(1) Journal européen des droits de l’homme / European Journal of Human Rights (2013) pp. 57-82 ; and Alidadi, K., Religion, Equality and Employment in Europe: the Case for Reasonable Accommodation (Hart 2017).
27 For a critique of the ways the European Court of Human Rights has made ‘neutrality’ a central concept of its Art. 9 case law, see Ringelheim, J., ‘State Religious Neutrality as a Common European Standard? Reappraising the European Court of Human Rights Approach’, 6(1) Oxford Journal of Law and Religion (2017) pp. 24-47 .
28 Lucy Vickers agrees that ‘despite the importance of religious freedom as a fundamental human right, its protection in the work context should be limited, because of its complex and contested interaction with the rights of other, whether they be employers, or those outside the religious group’, but suggests that acknowledgment of an employers’ duty to accommodate would achieve greater clarity and fairness than the anti-discrimination law model as it exists in the EU (i.e. one that does not formulate such a duty in field of religion – as opposed to disability): see Vickers, L., Religious Freedom, Religious Discrimination in the Workplace, 2nd edn (Hart 2016).
* Professor of law, Deputy Director, UMR 7074 Centre de théorie et analyse du droit, Université Paris Nanterre, email@example.com
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