'Fair balance' tra diritti fondamentali nella giurisprudenza della Corte di Giustizia in tema di libertà religiosa nel lavoro e impatto del principio di proporzionalità
Stefania Scarponi, Già Professore ordinaria di Diritto del lavoro nell’Università degli Studi di Trento
Il contributo affronta il tema del bilanciamento tra diritti fondamentali in materia di libertà religiosa e di opinione rispetto alla salvaguardia della libertà di impresa alla luce della giurisprudenza della Corte di Giustizia dell’Unione Europea che in recenti sentenze ha interpretato il divieto di discriminazione, diretta e indiretta, in materia di libertà religiosa. Muovendo dalle sentenze CGUE Bougnaoui e Achbita sul porto del velo nei luoghi di lavoro, viene approfondita quale sia la qualificazione appropriata a seconda delle fattispecie in gioco e altresì se il perseguimento dell’immagine di neutralità aziendale sia legittimo in virtù della libertà di impresa riconosciuta dalla Carta dei diritti fondamentali ed entro quali limiti. Un altro profilo cruciale attiene al principio di proporzionalità, che la CGUE considera principio generale e inderogabile del diritto euro-unitario applicabile anche in assenza di esplicito riferimento normativo, secondo la sentenza CGUE Egenberger. Tra le implicazioni più rilevanti, emerge l’obbligo per il datore di lavoro, che pure abbia adottato una immagine di neutralità, di ricercare soluzioni alternative al licenziamento in caso di rifiuto della lavoratrice/tore di adeguarsi al regolamento aziendale, qualificabile a stregua di “duty of reasonable accommodation”. L’ultima parte del contributo è dedicata all’analisi delle soluzioni più interessanti in materia di “reasonable accomodation” negli Stati Uniti e in Canada, e all’approfondimento della questione che attiene al limite derivante dalla tutela dei diritti dei lavoratori della medesima impresa. Sotto quest’ultimo profilo è affrontata altresì la sentenza CGUE Cresco per mettere in luce le differenze che persistono tra ordinamenti europei e non europei.
The analysis deals with the concept “fair balance of contrasting fundamental rights” between the employee’s religious freedom and the employer’s right in European Union law. First, the essay analyzes the recent case-law of the European Court of Justice concerning employee’s religious freedom (ECJ Bougnaoui and Achbita) focusing on the interpretation of the non-discrimination, direct and indirect, according to Directive 00/78 Ce and Charter of Fundamental Rights European Union. The essays tackles one of the most controversial points in this matter, about the neutrality corporate strategy and its limits. Furthermore, in the logic of fair balance, the article investigates another interesting pillars of the ECJ decisions about the impact of the “proportionality” principle, although not expressly provided, as a general principle of EU law according to ECJ Egenberger. Analyzing Achbita case-law the article supports the idea that the non-existing European formal legal duty of the employer to adopt “religious accommodation” should come from this creative interpretation of the principle of “proportionality” by the ECJ. The final part of the paper will investigate some interesting international examples of “reasonable accommodation” of employees with religious customs by reference to U. S. and Canadian law. One of the issues in this matter is the balance between “religious accommodation” and equal treatment of co-workers, that has been analyzed by comparing the solution adopted by the recent ECJ judgement Cresco in the matter of religious leaves.
Keywords: religious freedom in European Union law – non-discrimination at workplace – European Court of Justice judgements – proportionality principle – reasonable accommodation.
1. EU antidiscrimination law and restrictions of religious or belief freedom in order to respect employer’s rights at the workplace - 2. The direct and indirect discrimination in the ECJ case-law about the forbid from wearing the religious or belief freedom at work - 3. The image of 'corporate neutrality' qualified as legitimate aim of the employer and its limits - 4. The proportionality principle emerging from Achbita case-law as duty of 'reasonable accommodation' - 5. Some lessons arising from US and Canadian experiences on 'reasonable accommodation' - 6. The 'religious accommodatio' and the balance with the co-workers rights: reflecting on the ECJ judgement Cresco - 7. Final remarks - NOTE
1. EU antidiscrimination law and restrictions of religious or belief freedom in order to respect employer’s rights at the workplace
Before facing to the EU law, it is worth to remember that the concept of “fair balance” in the matter of the right to religious freedom at work is the core of the ECtHR judgements 15 January 2013 Eweida and Others v. United Kingdom (48420/10 36516/10 51671/10 59842/10), based on ECHR Art. 9 – right to religious freedom – and Art. 14 – ban of discrimination –, analyzing four similar cases in the United Kingdom regarding the refusal of an employee to fulfil to what requested by the employer . The case-law Eweida was related to the religious symbols at work and gave rise to the problem of the balance between the right of the employee and the freedom of the employer to establish the workplace regulation. On the one hand, employees must be granted the right to worship their beliefs. On the other hand, entrepreneurship rights imply that both employees and clients must be treated equally and neutrally: the image of corporate neutrality is a legitimate aim of the company only within the limits imposed by the fair balance . We must remember that, in the matter of fundamental rights provided by the Charter of Fundamental Rights of European Union (CFR), when the same rights are at stake – in this case Art. 10: thought, conscience and religious freedom, and Art. 21: non-discrimination –, the ECtHR interpretation directly influences the European Court of Justice, according to the CFR Art. [continua ..]
2. The direct and indirect discrimination in the ECJ case-law about the forbid from wearing the religious or belief freedom at work
The Bougnaoui and Achbita decisions’ focus is based on whether or not the employer decided to adopt a strategy of neutral corporate image. Given the lack of it, as in the case ECJ Bougnaoui, the behavior of the employer, who asked an informatics engineering employee to unveiled herself only to satisfy the client’s preference, was illegal even if it was for a short period of time. Only Muslim employees faced this kind of clothing discrimination, so it was per se a manifestation of hostility and prejudice towards that specific religion, therefore a direct discrimination based on the already quoted Art. 2(2) Directive 2000/78. It does not apply to, then, the general principle of reasonableness, though the more rigorous parameters, defined by Art. 4(1), Directive n. 78. Therefore, the decision correctly states, first and foremost, the need to verify if the request of unveiling, based only on client’s preferences, constitutes a “genuine and determining” requirement for the carrying out of the job activities, or for its context, according to the aforementioned legislation. One of the most important points of the argument states that the requirement must be “objectively necessary” regarding the carrying out of the job activities or the context in which it’s applied. This is not the case, since there’s no existing correlation between wearing a veil and any task concerning the correct functioning of [continua ..]
3. The image of 'corporate neutrality' qualified as legitimate aim of the employer and its limits
Scrutinizing the employer’s justifications according to Art. 2 (2) b) i) Directive 00/78, in case of indirect discrimination, the Court stated that a strategy of an image of neutrality pursued by the employer is a “legitimate aim” on the basis of Art. 16 of the Charter of Fundamental rights, that asserts the freedom to conduct a business not as an absolute right, but in accordance with the Union Law and National Law . The decision doesn’t offer any argument to support this point and it is very surprising, because it is the first time that this rule is affirmed by the ECJ. It is true that, under some national legal systems, the neutrality principle is established in the public sector, such as in France as consequence of the “laicité” principle, or in Germany in the educational sector, but it is less present in the private sector of employment, even though in French law a reform has been recently approved in this perspective. The Art. 2, Loi du Travail n. 1888/2016 introduced new Art. 1321 – 2-1 Code du Travail  that permits the employer to impose an attitude of neutrality at the workplace to their employees if it is requested in order to assure the “bon fonctionnement de l’entreprise” (good working of the firm) . In my opinion, the “image of neutrality” may be accepted because it is associated to a conception of the egalitarian universalism, and [continua ..]
4. The proportionality principle emerging from Achbita case-law as duty of 'reasonable accommodation'
One of the most interesting parts of the Achbita decision is the evaluation of the worker’s dismissal according to the proportionality principle: the provision, criterion or practice must be “appropriate and necessary”, in order to exclude their nature of indirect discrimination applying Art. 2 (2) b) i) Directive 2000/78. The importance of the principle of proportionality has been confirmed by the recent ECJ cases-law Egenberger 2018 and I.R. 2018: the European Court of Justice interpreted the concept of the fair balance according to Art. 4(2) Directive n. 78  as one of the most important rules to be applied in case of derogations to the discrimination ban, even though not expressly provided, because it constitutes a general principle of European Union legal framework . In this approach, the dismissal of the employee refusing to remove her Hijab was a too strong disciplinary step, as the French and the General Advocates underlined in the Acbita case-law. The ECJ decision did not declared this behavior unfair, but introduced a different argument stating that the employer had the duty to look for an alternative solution before deciding the dismissal, if it would be possible “without any additional burden ”. So the dismissal appears as an extrema ratio disciplinary sanction and the fair balance is carried out taking into account the interests involved in [continua ..]
5. Some lessons arising from US and Canadian experiences on 'reasonable accommodation'
The approach to the fair balance between the discrimination ban and the employer’s interest leads us to analyze deeper the experience of the systems related to an important religious pluralism, as in the United States and in Canada. The Achbita conclusion seems to be directly inspired by the Title VII, US Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq, about the religious freedom, imposing to the employer the duty of «religious accommodation» (R.A.) . According to the EEOC Guidelines about Religious Discrimination and Reasonable Accommodation, “the reasonable accommodation means an employer may be required to make reasonable adjustments to the work environment that will allow an employee to practice his or her religion . The duty is not absolute: the employer is exempted if “Doing so would cause more than a minimal burden on the operations of the employer’s business”, or “Unless it would be un undue hardship on the employer operation of its business” , as we can read in the paragraph “Religious Accommodation/Dress & Grooming Policies” of the same document. For purposes of religious accommodation, undue hardship is defined by courts as “more than de minimis” cost or burden on the operation of the employer’s business. For example, if a religious accommodation would [continua ..]
6. The 'religious accommodatio' and the balance with the co-workers rights: reflecting on the ECJ judgement Cresco
One of the most relevant issues of R.A. regards its effects on the co-workers. In the light of the antidiscrimination law, we will focus on the equality principle and if it is violated when the measure of R.A. adopted by the employer constitutes an exception to the general conditions in the workplace. Following the comparative approach, in the U.S. system, the EEOC manual in the matter of dress code argues that: “When an exception is made as a religious accommodation, the employer may nevertheless retain its usual dress and grooming expectations for other employees, even if they want an exception for secular reasons. Co-workers non adherent to the same religious disgruntlement or jealousy about the religious accommodation is not considered undue hardship, nor is customer preference”. In the Canadian system, the R.A. is denied if the measure at issue causes an important damage to the co-workers. The Supreme Court deals with this problem, related to the demand by some workers in order to have a leave in a working day to attend their religious services. In one of these cases, the union also objected to grant the leave because it would be violating the schedule provided by the collective agreement applied to all employees and the “morale” of the other workers could be negatively impressed . On the contrary, the Canadian S.C. ruled that those circumstances didn’t make a “heavy violation” of rights of other workers, but only [continua ..]
7. Final remarks
The analysis of ECJ case-law on the matter of religious or belief freedom at work shows that, in EU law, the principle of equal treatment and non-discrimination is very important and that the Charter of Fundamental Rights has increased in value as primary law. In this vision, the principle of proportionality has been applied as a key concept for interpreting the norms in the matter of derogations to the antidiscrimination ban and of “fair balance” between contrasting rights. It is interesting to note, that the ECJ decisions rule, first of all, that also in case of indirect discrimination is required an objective, real, rational and strict correlation between religious requirements and employee tasks, even though not “determining”, in order to justify the derogation of the non-discrimination ban. The outcome of this interpretation, by means of the proportionality principle, is that the distance between the regulatory solutions in the matter of derogations, in the different cases of direct and indirect discrimination, has been narrowed. Whether the image of neutrality is a legitimate aim of the employer, according to the freedom of conduct a firm, is still an open issue, particularly if the neutrality is conceived negatively instead of positively. Nevertheless, according the ECJ Achbita, in the light of fair balance, the limits of such a strategy are strict: a) only the employees involved in tasks in direct contact with customers [continua ..]