The EU Needs an RFRA:
The Leftovers of Religious Freedom in the Case Law of the Court of Justice
Recently, the Court of Justice of the EU (CJEU) passed a new ruling on the Muslim headscarf. That headscarves cause debate shouldn’t be a surprise. Four years ago, the CJEU dealt with the very same issue: private employers asking Muslim women to remove their headscarves and Muslim women claiming the violation of Directive 2000/78 EC, which prohibits religious discrimination in the workplace. But the twin cases that the Court decided on July 15, 2021 did say something new – and troubling for religious practitioners of any denomination.
These cases — IX v. WABE and MH Mueller Handels GmbH v. MJ — both concern the interpretation of Directive 2000/78, which, among other things, completely bans direct religious discrimination while carving out a limited space for indirect discrimination. According to the directive, direct religious discrimination takes place when “one person is treated less favorably than another is, has been or would be treated in a comparable situation” on religious grounds. Indirect religious discrimination happens when “an apparently neutral provision, criterion or pratice would put persons having a particular religion or belief … at a particular disadvantage compared with other persons.” However, this type of discrimination can survive as long as it is “objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.”
IX v. Wabe originated in Hamburg. It concerned a Muslim female employee suspended for refusing to remove her headscarf as required by a recently implemented internal regulation of a company that runs a series of childcare facilities. In pursuance of the City of Hamburg’s recommendations that children be exposed to “fundamental ethical questions as well as religious and other beliefs as part of the living environment,” nurturing a sense of “appreciation and respect for other religions, cultures and beliefs,” Wabe implemented a regulation that commanded “neutrality” and prohibited the usage of any “religiously or philosophically determined clothing” among the staff interacting with the children and parents, as such garments would be “contrary to the requirement of neutrality.”
MH Mueller Handels GmbH v. MJ revolved around a drugstore in which a sales assistant refused to obey the employer’s request that she remove her headscarf, as outlined in a preexisting internal directive banning “the use of conspicuous, large-sized political, philosophical or religious signs in the workplace in all its stores.”
Predictably, the CJEU did not produce a firm ruling. As the role of the CJEU is to secure a uniform interpretation of EU law, national courts within EU member states will sometimes suspend their judicial proceedings and refer cases that revolve around EU law to the CJEU, seeking the ultimate interpretation of relevant EU provisions. The CJEU issues judgments that leave the application and enforcement of EU provisions up to the national courts. Ultimately, in the cases of IX v. Wabe and MH Mueller Handels GmbH v. MJ, the CJEU distilled a series of principles that are now left to the national courts to deploy.
Each statement made by the CJEU tells a significant part of the story – and it is a rather sad story for those who care about religious freedom within the EU. I will summarize each of them and comment on their ramifications.
1. “[A]n internal rule of an undertaking, prohibiting workers from wearing any visible sign of political, philosophical or religious beliefs in the workplace, does not constitute, with regard to workers who observe certain clothing rules based on religious precepts, direct discrimination on the grounds of religion or belief, for the purpose of that directive, provided that that rule is applied in a general and undifferentiated way.”
This statement argues that strict and consistently enforced neutrality does not amount to direct discrimination. Admittedly, the CJEU had to face a serious charge against neutrality-based company policies. Under the directive, direct discrimination does not allow for exception: to state that a policy of neutrality is direct discrimination is to rule it out. But the CJEU’s bold statement that neutrality cannot be discriminatory is puzzling. In fact, from the perspective of religious practitioners, neutrality is not neutral: the prohibition to wear religious signs affects only religious people; neutrality does not harm those who do not need to wear religious signs. By determining that neutrality is not discriminatory, the judgment echoed the Advocate General’s opinion, who advised the Court to distinguish between religious freedom and religious discrimination. The Advocate General argued that the directive does not protect freedom, but only equal treatment: since such a general prohibition to wear religious signs did not allow for differences, it could not be considered as discriminatory. This line of reasoning makes one wonder what it means that the prohibition of discrimination on the ground of religion does not have to do with religious freedom. But even leaving that aside, a problem still remains: the ruling of the CJEU is not equally burdening to religious and non religious people. It clearly targets those who have the religious obligation to dress in a certain way. The Court thus struck a blow to the equal treatment of religious and nonreligious persons and made a very artificial distinction between protecting religious freedom and securing equality
2. “[A] difference of treatment indirectly based on religion or belief, arising from an internal rule of an undertaking prohibiting workers from wearing any visible sign of political, philosophical or religious beliefs in the workplace, may be justified by the employer’s desire to pursue a policy of … neutrality with regard to its customers or users, provided, first, that that policy meets a genuine need on the part of that employer, which it is for that employer to demonstrate, taking into consideration, inter alia, the legitimate wishes of those customers or users and the adverse consequences that that employer would suffer in the absence of that policy, given the nature of its activities and the context in which they are carried out; secondly that that difference of treatment is appropriate for the purpose of ensuring that the employer’s policy of neutrality is properly applied, which entails that that policy is pursued in a consistent and systematic manner; and, thirdly, that the prohibition … is limited to what is strictly necessary having regard to the actual scale and severity of the adverse consequences that the employer is seeking to avoid by adopting that prohibition.”
From this statement, we know that neutrality is an ideological option: it is the option of prohibiting the usage of visible religious signs. And such a policy is fine for employers – of any kind – who wish not to disappoint their “customers or users,” and who may face “adverse consequences … in the absence of that policy.” There is a lot to unpack here.
The CJEU did not identify under which circumstances a company may enforce neutrality. Nor did it say a word on the fact that one controversy originated in a drugstore. Yes, a drugstore, namely a place where people stop to do some shopping: not exactly the most culturally inspiring and spiritually loaded environment. The CJEU muddied the waters even further by emphasizing that the child daycare case involved the freedom of education of the children’s families, as enshrined in Art. 14 of the Charter of Fundamental Rights of the EU (par. 65). According to the CJEU, the right to freedom of education of those families supported the childcare’s neutrality policy.
The problem, of course, is that there is no evidence that the parents expected that their children would spend their daytime in facilities wherein adults did not wear religious signs. The City of Hamburg’s recommendations aimed at exposing children to the great questions of life, which included the “encountering [of] other religions” (par. 23); this was what the parents signed up for. It was Wabe that introduced its own “instructions on observing the requirement of neutrality” (par. 23). Justifying strictly enforced neutrality by claiming that this accomplishes the goal of encountering different worldviews and becoming more spiritually mature, as the CJUE did here, looks all but neutral.
The CJEU even seems to have taken back a statement made in Bougnaoui, where it found that requiring an employee to take off the Islamic veil just because a customer so requested was not justifiable under the directive.1Bougnaoui v. Micropole, par. 41: “the willingness of an employer to take account of the wishes of a customer no longer to have the services of that employer provided by a worker wearing an Islamic headscarf cannot be considered a genuine and determining occupational requirement”. There it seemed that the directive trumped economic considerations. Conversely, here, the CJEU paid great attention to “the legitimate wishes of those customers or users and the adverse consequences that that employer would suffer.” It is hard to see what “adverse consequences” a drugstore would bear besides some hostilities among employees that the employers wanted to avoid by silencing minoritarian voices, or the economic losses stemming from customers deserting the outlet because they do not want to be served by a Muslim woman wearing the veil – an argument that Bougnaoui did not accept.
3. “[I]ndirect discrimination on the grounds of religion or belief resulting from an internal rule of an undertaking prohibiting, at the workplace, the wearing of visible signs of … beliefs with the aim of ensuring a policy of neutrality within that understaking can be justified only if that prohibition covers all visible forms of expression …. A prohibition which is limited to the wearing of conspicuous, large-sized signs of … beliefs is liable to constitute direct discrimination on the grounds of religion or belief, which cannot in any event be justified.”
The CJEU routinely deploys the scrutiny of proportionality with the goal of balancing competing interests while avoiding that any are unnecessarily sacrificed. That was also the approach of the Advocate General. Albeit favorable to employers willing to enforce neutrality within their ranks, the Advocate’s opinion argued against the “total prohibition” of the “visible wearing of any sign of political, philosophical or religious beliefs,” encouraging the CJEU to protect “small-scale” religious symbols (parr. 79 and 76).
The Advocate General’s approach would not have saved the Islamic scarf (76). But it would still have been a compromise. The CJEU went the other way, however, concluding that only general bans can survive judicial scrutiny. Neutrality does not seem to require balancing, but rather strict adherence.
Paradoxically, in light of the CJEU’s ruling, the drugstore’s policy of neutrality seems not to survive the judicial scrutiny – not because it is a drugstore, but because it does not have a total ban on religious signs, with no exceptions.
4. “[N]ational provisions protecting the freedom of religion may be taken into account as more favourable provisions … in examining the appropriateness of a difference of treatment indirectly based on religion or belief.”
This short statement says a lot about the powerful cultural shift that we may witness in the future. It is constitutional law 101 in Europe that EU law prevails over contrary national provisions. EU law, however, sometimes makes room for domestic provisions that are more protective, thus allowing States to go different ways, at least to some extent. This is what the CJEU decided here.
More importantly, under the surface, this statement probably represents a change of strategy in religious freedom litigation. Those who have been making religious freedom claims within the EU are likely starting to think that domestic provisions are more favorable to them than EU law, at least as distilled by the CJEU. We are likely to see religious believers making more arguments based on state legislation rather than on EU anti-discrimination law, and more clashes between them and employers invoking EU law-based rights.
The current scenario is sad for practicing religious people as well as for the EU as a whole. The EU has tried to reinvent itself for years, increasingly engaging in the narrative of fundamental rights. But religious freedom concerns seem to sit in the back row, leaving the frontline to the economic rights that have been the backbone of European integration since the 1950s. Alongside economic considerations lies also the deep-seated belief that neutrality can “prevent social conflicts” (par. 76), and that this can be enforced also at the expense of religious freedom.
There is room for an in-depth conversation on whether neutrality is good to deter social rifts, although this essay is not the place for engaging such an issue. It is quite interesting to notice, however, that female practitioners who belong to religious minorities are seeking shelter under national laws instead of leveraging the EU law narratives of pluralism and neutrality. ♦
Andrea Pin is Associate Professor of Comparative Public Law, University of Padova Law School, and Senior Fellow in the Center for the Study of Law and Religion at Emory University.
Pin, Andrea. “The EU Needs an RFRA: The Leftovers of Religious Freedom in the Case Law of the Court of Justice.” Canopy Forum, August 3, 2021. https://canopyforum.org/2021/08/03/the-eu-needs-an-rfra-the-leftovers-of-religious-freedom-in-the-case-law-of-the-court-of-justice/.