The Court of Justice of the European Union provided new guidance on March 14, 2017 on the visible bearing of political, philosophical, or religious symbols in the workplace—and any direct discrimination that may result.
This guidance was much anticipated in France, as the French legal framework tries to strike a balance between secularism and nondiscrimination on the one hand and religious freedom on the other—principles that sometimes conflict, giving rise to long and difficult legal disputes.
The Court of Justice of the European Union (CJEU) has considered that a company’s internal regulations prohibiting the visible bearing of such symbols do not constitute direct discrimination, provided that such internal regulations treat all employees in a general and undifferentiated way.
The notion of religion is not expressly defined by Directive n° 2000/78, which established a general framework for equal treatment in employment and occupation in the European Union. Nevertheless, the directive refers to the European Convention on Human Rights and, as a consequence, the CJEU construes the notion of religion in light of that convention. According to the CJEU, religion shall be interpreted as covering both religious beliefs as well as the freedom to manifest those religious beliefs in public.
National judges can declare the internal regulations of a company either directly or indirectly discriminatory when their application disadvantages persons of a particular religion. However, a difference in treatment between employees having different political, philosophical, or religious convictions can be nondiscriminatory when it is justified by a legitimate purpose and when the means for achieving this purpose are appropriate and necessary. Several elements have to be taken into account to assess whether discrimination exists, according to the Advocate-General of the CJEU (e. g., size and ostentatious nature of the symbol, nature of the employee’s activity, context in which the employee has to carry out his/her professional activity, and cultural identity of the involved EU member state). If the national judge is the only one who has jurisdiction to determine if internal regulations of a company comply with European requirements, the CJEU provides guidance.
According to the CJEU, the decision by a company to portray an image of political, philosophical, or religious neutrality to both public and private clients is a legitimate purpose, especially when considering employees who directly interact with clients. This right comes from the freedom of enterprise recognized by the European Charter of Fundamental Rights. For this purpose, a prohibition on the visible bearing of political, philosophical, or religious symbols is appropriate to ensure the proper application of a policy of neutrality, provided that this policy is pursued in a systematic and coherent manner. When an employee who interacts with clients expresses the wish to bear a visible religious symbol, the employer must check whether it can offer another position to the employee in order to respect the individual’s convictions while remaining in compliance with the company’s internal regulations.
The mere request of a client not to be in contact with a person bearing any political, philosophical, or religious symbol cannot, in principle, be regarded as a professional requirement that may exclude the existence of indirect discrimination. In fact, the CJEU guidance arose out of a litigation regarding an employee who was dismissed by her employer for refusing to take off an Islamic veil during a working session for a client that requested that the veil not be worn. So, there are some professional requirements that can be considered as a form of direct or indirect discrimination. According to the CJEU, it is only under extremely limited circumstances that a characteristic linked to religion can constitute an essential and determining professional requirement. The aforementioned concept refers to a requirement objectively dictated by the nature or conditions of the performance of a professional activity and does not cover subjective considerations, such as the employer's wish to take into account the particular requests of clients. According to the Advocate-General to the CJEU, if a company’s interests justify indirect discrimination, this discrimination needs to be proportionate to the purpose pursued by the company.
French companies can use this CJEU guidance to introduce new provisions in their internal regulations as allowed by an August 8, 2016 modification to the French labor code. Indeed, under the resulting Article L. 1321-2-1, a company’s internal regulations can set a principle of neutrality at the workplace and limit the outward manifestation of employees’ convictions as long as such restrictions are justified by the exercise of other fundamental rights and freedoms or by the necessity of the proper functioning of the company, and are proportionate to the aim pursued.