Introduction
The Court of Justice of the European Union (‘CJEU’), in the case of LF v SCRL, upheld an employer’s right to pursue a policy of neutrality in the workplace which includes a prohibition of wearing headscarves in the workplace. The CJEU held that the prohibition of wearing any visible religious sign or clothing would not amount to direct discrimination provided that the law is applied in a general and undifferentiated way. To the question of whether the neutrality rule amounts to indirect discrimination towards the Muslim community, the CJEU referred the same to the Tribunal du Travail Francophone de Bruxelles (‘Belgium Court’) to ascertain whether the neutrality policy is, in fact, indirectly discriminatory.
In anticipation of the Belgium court’s decision, this piece argues that the neutrality policy is indirectly discriminatory towards the Muslim community (particularly Muslim women) in so far as it prohibits Muslim women from wearing a headscarf at their workplace. It would do so by first elucidating on the judgement and second, applying the test of indirect discrimination to the facts of the case before finally concluding the piece.
The Judgement
The case involves LF, a Muslim woman, who was denied an internship at SCRL because she failed to adhere to the neutrality policy of the company which asked her to remove her Islamic headscarf. The neutrality policy requires every worker to not manifest their religious, philosophical, or political belief in any way at the workplace. This neutrality policy was challenged for being violative of the Council Directive 2000/78 (‘Directive’) that establishes a general framework for equal treatment in employment. Article 2 of the Directive prohibits both direct and indirect discrimination on specific protected grounds.
The CJEU held that a policy of neutrality pursued by an employer would not constitute direct discrimination provided that the policy is applied in an undifferentiated way. In the present case, the CJEU held that since there was no difference of treatment to LF, the same does not amount to direct discrimination.
While deciding the issue of indirect discrimination, the CJEU reiterated the general principles laid down in IX v WABE and held that if the neutral provision puts members of a particular religion at a particular disadvantage, then the neutral provision would amount to indirect discrimination. However, such a provision would nonetheless not amount to indirect discrimination if it is in furtherance of a legitimate aim and the means of achieving that aim are appropriate. The CJEU also held that:
“[T]he mere desire of an employer to pursue a policy of neutrality – while in itself a legitimate aim – is not sufficient, as such, to justify objectively a difference in treatment indirectly based on religion or belief, since such a justification can be regarded as being objective only where there is a genuine need on the part of that employer, which it is for that employer to demonstrate.”
The CJEU referred the issue of indirect discrimination to be decided by the Belgium Court based on the above principles considering the particular facts and circumstances prevalent in Belgium.
Indirect Discrimination
Article 2(2)(b) of the Directive provides a two-step test to establish indirect discrimination. First, it must be shown that an apparently neutral provision puts members of a particular religious group at a particular disadvantage compared with other persons. Second, the provision would not amount to indirect discrimination if the provision is objectively justified by a legitimate aim and the achievement of the same is done through appropriate and necessary means.
A. The “Particular Disadvantage” Prong
The first prong of the indirect discrimination test requires that the Muslim community is put at a particular disadvantage as compared to other groups. This involves three sub-elements – a neutral provision, a comparator group, and a particular disadvantage to the community. The employer policy in question fulfils the criteria of an apparently neutral provision.
In the present case, Muslims are put at a particular disadvantage because the wearing of a headscarf is of particular importance to them as a part of their religious beliefs. Due to the neutrality policy, Muslims would be forced to look for alternative employment opportunities for they might not be willing to let go of their religious beliefs. However, the same logic can also be extended to other communities such as Christians who might hold similar strong religious beliefs in terms of wearing religious symbols. The important factor that makes the neutrality policy indirectly discriminatory to Muslims is the lack of alternative employment opportunities due to structural barriers faced by them. A Report by the Open Society Institute indicates the low employment rate of Muslims and the various barriers faced by them in getting a job. It points out that low levels of early education, poor language skills, and low social capital are some of the important barriers faced by Muslims. The key findings of the research undertaken by the European Network Against Racism indicate the presence of Islamophobia and its impact on equal job opportunities for Muslims. These reports also provide statistical evidence which could be used by the Belgium Court to establish a prima facie case of indirect discrimination against Muslims.
Another aspect of holding the neutrality provision as indirectly discriminatory is the intersection of gender and religion. Since wearing a headscarf almost exclusively affects Muslim women, it is necessary that particular disadvantage to Muslim women is also explored. This should be done even though the CJEU in previous cases (IX v WABE) has ruled out gender-related discrimination as being outside the scope of the Directive. The Belgium Court should undertake an intersectional approach to indirect discrimination while deciding the case. It could rely on Sandra Fredman’s Report on Intersectional Discrimination in EU Gender Equality Law which highlighted the particular disadvantage faced by women from disadvantaged ethnic minorities in Europe. This would further strengthen the establishment of a prima facie case of indirect discrimination.
B. The “Objectively Justified by a Legitimate Aim” and “Appropriate and Necessary Means” Prong
The second prong of the indirect discrimination test limits the scope of the first prong. It has two elements that need to be fulfilled by the provision in question – objectively justified by a legitimate aim and the means of achieving it is through appropriate and necessary means.
The CJEU holds that pursuing a policy of neutrality is a legitimate aim for it is in pursuit of Article 16 of the Charter of Fundamental Rights of the European Union which guarantees the freedom to conduct a business. Additionally, the provision is “objectively justified” if there is a “genuine need” on the part of the employer to enact the provision in question.
The above proposition, as held by the CJEU, is problematic. Erica Howard, in her piece, raises the question of whether a neutrality policy can ever be a legitimate aim. She points out how any neutrality policy is created to pander to the real or anticipated prejudicial wishes of the customers. The same problem arises in determining the “genuine need” of an employer in enforcing such a neutrality policy. This is because catering to the customers’ prejudicial wishes and interests would be considered a “genuine need” for the employer. If we take the CJEU’s proposition at its face value, it would be open for the employer to argue that its customers do not wish to be served by a particular religious community and hence it is justified to enforce a neutrality policy. This would end up defeating the very purpose of anti-discrimination laws. Therefore, it is imperative that such sort of a situation does not arise. One of the ways available to the Belgium Court to tackle this problem is to narrowly interpret the “genuine need” requirement to prohibit the justifying of a neutrality policy based on customers’ wishes. This would preclude the misuse of the indirect discrimination provision. In this specific case, the neutrality policy might, in fact, be a manifestation of the Islamophobic attitudes of the customers of SCRL. Hence, the Belgium Court needs to consider whether the neutrality policy is genuinely required by the employer.
In determining whether the provision uses appropriate and necessary means for achieving the legitimate aim, the Belgium Court would have to look at whether any better alternatives were available for SCRL in enforcing any neutrality policy. It would be important to assess whether SCRL could have given LF an internship at a post which did not require contact with clients. This was an important factor while deciding the case in IX v WABE. However, the above proposition is problematic for it may lead to the confinement of religious minorities to backroom jobs with no client-facing role. This would be far from an ideal situation. Therefore, it would be important that the Belgium Court does not solely rely on the above criterion and look at other factors to ensure that the provision genuinely uses appropriate and necessary means for achieving the legitimate aim.
Conclusion
This piece has argued that a prima facie case of indirect discrimination against the Muslim community, and in particular Muslim women, is met out. It seems unlikely that the neutrality policy is otherwise justified under the second prong of the indirect discrimination test. This piece has highlighted certain important factors that should be kept in mind by the Belgium Court while deciding the case. Additionally, it has also provided certain larger concerns with the decision of the CJEU in LF v SCRL.
Paras Khetan is a second-year student in the BA.LLB course at the National Law School of India University, Bangalore.
Image: Juan Sanchez
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