Claims related to religious freedom in the workplace have increased in the past few years1. In two recent decisions rendered March 19, 20132, the French Supreme Court clarified the key line between religious freedom and another constitutional principle, secularism.

The French Supreme Court first noted that the principles of neutrality and secularism may be invoked by the employer in the public sector, including by a private organization that performs public sector services. In addition, the Court underlined that the principle of religious freedom in the workplace, and in particular wearing religious symbols, may only be subject to justified and proportionate restrictions, and, in addition, only in response to an essential and determining professional requirement. In doing so, the Supreme Court sanctioned clauses of internal company regulations which provide for general and absolute restrictions on religious freedom.

Restriction of the scope of application of the principle of secularism to public services

The first case3 concerned the dismissal of the assistant director of a daycare center for serious misconduct. She had refused to take off the headscarf she wore, in breach of the daycare center’s internal regulations imposing strict compliance with the principles of secularism and neutrality, within the premises of the center and its annexes, as well as during outside outings with the children. The claimant filed proceedings before the labor court, claiming that she was the victim of discrimination based on her religious beliefs and that her dismissal was therefore void.

The labor court ruled that the company’s internal regulations were perfectly lawful, in light of Article 1 of the French Constitution which states the principle of secularism, and that by violating them the employee had committed serious misconduct justifying her dismissal.4 The Court of Appeals confirmed this decision, considering that the neutrality of the employees was necessary5.

The French Supreme Court finally decided on the matter in favor of the employee, ruling that “the principle of secularism, established by Article 1 of the Constitution, does not apply to the employees of private employers which do not manage a public service”. Despite its mission of general interest, the daycare center, an employer in the private sector, could not rely on a strict application of the principle of secularism to deprive its employees of the protection afforded to them by the provisions of the French Labor Code, sanctioning discrimination based on religious beliefs.

In a decision on the same day6, the French Supreme Court validated the dismissal of an employee working in the public sector, the French Primary Sickness Insurance Fund (CPAM), who had refused to take off her headscarf, thus violating the provisions of the CPAM’s internal regulations which specifically forbade this. The French Supreme Court ruled that the principles of neutrality and secularism of the public service applied to all public services, including those carried out by private organizations (such as the CPAM). The Court considered that even if the agents employed by these organizations are protected by the provisions of the French Labor Code, they must nevertheless be subject to specific constraints, so to ensure “the neutrality of the public service for its users”.

This decision confirms the distinction made by the French Supreme Court between private organizations, in which the principle of secularism does not apply to employees in an absolute or general way, and public services, including those managed by private organizations, where the agents may indeed be subject to principles of neutrality and secularism.

Review of provisions of internal regulations relating to religious freedom

While the Supreme Court allowed that internal regulations may contain provisions limiting religious freedom and in particular forbidding wearing religious symbols, the so-called Baby Loup case of March 19, 20137 clarifies the strict limits to which the employer must then be subject, thus applying the traditional requirements of justification and proportionality. The French Supreme Court, applying Articles L.1121-1 et L.1321-3 of the Labor Code, held that any restriction to the individual and collective freedoms of the employees must be “justified by the nature of the task to be carried out and proportionate to the aim sought”, particularly if contained in the company’s internal regulations.

In addition, pursuant to legislation on discrimination set out in Article L.1133-1 of the French Labor Code, restrictions on religious freedom must, like any difference in treatment, respond to an “essential and determining professional requirement”.

The Court therefore banned any general and imprecise possibility of restriction. In this case, the Court ruled that the general clause of secularism and neutrality of the daycare center’s internal regulations implementing a general and imprecise restriction8 was contrary to Article L.1321-3 of the French Labor Code, and thus, the dismissal pronounced thereon, was void, as it discriminated based on religious beliefs.

What can the employer do?

In the light of this new case law, employers would do well to review the provisions of their internal regulations in order to ensure that they do not contain any general restrictions on the individual freedoms of employees. A private employer who wishes to take measures restraining religious freedom, must be able to set out the reasons why certain specific functions or positions must be subject to these restrictions, for example hygiene or safety reasons. If the internal regulations need to be modified, the employer will have to follow the mandatory procedure under Article L.1321-4 of the French Labor Code for the consultation of the personnel representatives and send a copy of the internal regulations to the labor inspector.