Policies aziendali di neutralita' e liberta' religiosa nel rapporto di lavoro
Cinzia Carta, Assegnista di ricerca nell’Università di Bologna
L’autrice si interroga sulla legittimità del divieto di indossare simboli religiosi all’interno dei luoghi di lavoro. La controversa giurisprudenza della CGUE sul tema è esaminata in senso critico, alla luce delle decisioni della giurisprudenza della Corte EDU e di quella nazionale comparata.
PAROLE CHIAVE: identitÓ europea - laicismo - diritto antidiscriminatorio - libertÓ religiosa e di pensiero - rapporto di lavoro - policies aziendali di neutralitÓ - giurisprudenza CEDU - CGUE e comparata
The Author investigates the legitimacy of companies’ decisions to prohibit the wearing of symbols of religion or belief at the workplace. The controversial ECJ case law on this subject could be criticized in the light of the ECtHR and comparative case law.
Keywords: European identity – secularism – anti-discrimination law – freedom of religion and belief – employment relationship – companies’ policies of neutrality – ECtHR, ECJ and comparative case law.
1. Handling multiculturalism: frequent mystifications - 2. ECJ case law on neutrality policies - 2.2. Limits to indirect discrimination - 2.3. Does the ECJ create a contradiction? - 3. Varieties of neutrality: national examples - NOTE
1. Handling multiculturalism: frequent mystifications
Is the prohibition of wearing religious symbols at work consistent with anti-discrimination law? Given that the workplace in a globalized World  is a “multiple” environment , it may help avoid internal conflicts. However, I will investigate companies’ image of neutrality towards customers, outside the workplace. The legal reasoning in Europe is often entangled with the fear that secularism would be under pressure , which requires some clarifications . The current Islamophobia  – built upon immigration and terror attacks  – is barely recognized as racism. Uneasiness towards Muslim people doesn’t focus on physical or ethnic characteristics, but rather on cultural ones . Cultural racism suggests that a certain culture is the most evolved product of humankind; therefore, it should be defended from any contamination . Thus, the urgency to protect the European identity is justified by declaring that its democratic essence – also relying on the minor importance of religious practices  – would be of universal value. In a time when tolerance is a strategic value, the danger of this reasoning is increased by its inaccuracy , with only a vague comprehension of “Islamic” and “European” . The concept of European identity is at the least problematic , and involves a [continua ..]
2. ECJ case law on neutrality policies
2.1. The questionable exclusion of direct discrimination The expression “policy of neutrality” is crucial in the reasoning of the ECJ in the cases known as Achbita and Bougnaoui (decision of 14 March 2017, case C-157/15, Achbita v. G4S Secure Solutions NV; decision of 14 March 2017, case C-188/15, Bougnaoui v. Micropole SA). In Achbita the dispute concerned a receptionist who had been dismissed for her decision to wear a Muslim headscarf at work. The company relied on an unwritten rule according to which workers could not wear any visible sign of their beliefs. Following the decision of Ms Achbita to wear the headscarf at work regardless, the works council  approved an amendment to the workplace regulation, prohibiting the wearing of any visible sign of political, philosophical or religious belief. Ms Achbita was dismissed. The employer claimed to have the right to avoid customers’ uneasiness towards manifestations of religious belief. The ECJ held that the regulation did not introduce a difference of treatment directly based on «religion or belief» to the purposes of Article 2(2) (a) of Directive 2000/78/EC, because all workers would have been treated in the same way, requiring them, in a general and undifferentiated way, to dress neutrally. The argument seems controversial. What does it mean to prescribe dressing neutrally if not prohibiting the [continua ..]
2.2. Limits to indirect discrimination
In Achbita the ECJ pointed out that an internal rule could amount to indirect discrimination if an apparently neutral obligation actually encompassed a difference of treatment. Indirect discrimination doesn’t occur if the difference is justified through a legitimate aim. The ECJ held that “the desire to display a policy of political, philosophical or religious neutrality must be considered legitimate, notably where the employer involves in its pursuit of that aim only those workers who are required to come into contact with the employers’ customers” since it “relates to the freedom to conduct a business that is recognised in Article 16 of the EUCFR (§§ 36 and 37). The reasoning would be that neutral dress codes would affect more Muslim people than other religious people. In fact, covering religious symbols or not wearing them not is usually problematic for most Christians; that is, for the largest majority of worshippers in Europe. But in that case, would it be offensive to anybody?  Or not, because in that case customers wouldn’t mind ? I doubt that policies of neutrality complying with customers’ cultural preferences can be “objectively justified by a legitimate aim” and that “the means of achieving that aim are appropriate and necessary”, for three reasons. Firstly, the reference made by the ECJ to Article 16 of the Charter is at odds [continua ..]
2.3. Does the ECJ create a contradiction?
Member States’ legislations could establish exceptions to Article 2 (1) and (2) in the light of Article 4 (1) of Directive 2000/78/EC if, by reason of the nature of the activity or the context in which it is carried out, a characteristic included in Article 1 constitutes a genuine and determining requirement, provided that the aim is legitimate and the requirement proportionate. In Bougnaoui, an engineer had been dismissed because a customer claimed that her wearing the veil had upset more than one of his own employees. The employer maintained that wearing the headscarf in contact with customers made it impossible for her to carry out her functions. The French Cour de cassation referred the question to the ECJ of whether Article 4 (1) of Directive 2000/78/EC could be interpreted as meaning that the wish of a customer could be a genuine and determining occupational requirement. The ECJ held that this concept cannot cover subjective considerations, such as the willingness of the employer to take account of the particular wishes of his customers. In Bougnaoui the ECJ points also out that complying with a customer’s desire is something other than implementing a “policy of neutrality vis-à-vis its customers” (Bougnaoui, § 38), since the Achbita case had already established that neutrality vis-à-vis its customers is an objectively legitimate aim (Bougnaoui, § 33). It [continua ..]
3. Varieties of neutrality: national examples
The recently drafted Article L. 1321-2-1 of the French Labour Code (Article 2, law n. 2016-1088 of 8 August 2016) establishes that an internal rule can contain clauses of neutrality that limit employees’ manifestation of their personal convictions, when justified by the exercise of other freedoms or fundamental rights, or situations necessary for “companies’ performance”, provided that they are proportionate . Article L. 1321-2-1 was introduced after the criticized Baby Loup judgment . In that case a kindergarten teacher’s dismissal for wearing the veil was judged legitimate by the Cour d’Appel of Paris because the workplace regulation provided a rule of neutrality . Since in France the law imposes on public servants (or workers carrying out a public service) the obligation to abstain from showing any religious symbol, the decision was controversial, since it concerned a service of general interest, but not a public service (nor an entreprise de tendance, which might justify exceptions) . Nowadays private companies’ policies of neutrality seem to be per se justified when workers’ duties involve contact with customers . In Italy the Corte d’Appello of Milan recently qualified as direct discrimination the exclusion of a candidate from a job interview due to her Muslim veil. It is true that the [continua ..]