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.

SOMMARIO:

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 [1]. 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 [2]. 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. 52 [3]. Recent ECJ judgements on religious antidiscrimination law, based on the concept of “fair balance”, raise very controversial issues about the relationship of the right to religious and belief freedom with the antidiscrimination law [4]. Analyzing the two well-known ECJ judgements of 1917 Bougnaoui and Achbita [5], regarding the Muslim headscarf at work, some scholars argue that the two decisions contradict each other and they are not able to offer a convincing interpretation of the concept of discrimination nor of the acceptance or refusal of the employer’s justification [6]. I disagree with this opinion but it is true that the ECJ judgements bring up some issues in the legal framework that I will investigate. The European Union antidiscrimination law about the balance of religious freedom or belief and the employer’s business necessity provides for two separate criteria in case of direct or indirect discrimination.  In [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 a computer. Nor the client’s preference is an acceptable justification since, from a moral point of view, accommodating the client’s request would have meant agreeing to prejudices towards a specific religion and exploiting them as justification to violate religious freedom, with an obvious logical and systemic discrepancy regarding the protected value [10]. It’s a shared principle among legal systems in which there’s also the obligation of Reasonable Accommodation (infra § 5). The ECJ Bougnaoui argument is also important in the matter of limits to the employer’s right to establishing specific dress codes at the workplace: he/she can request the compliance with general indications about being appropriately dressed within a work environment and towards the public. The employer will be able to give some specific rules only if they would be motivated by specific issues, such as the need to identify the personnel with uniforms, [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 [14]. 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 [15] 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) [16].  In my opinion, the “image of neutrality” may be accepted because it is associated to a conception of the egalitarian universalism, and of the pluralism in the civil society, where many groups practicing different religions or beliefs live together in a pacific way. The neutrality could mean also that all people in relationship with the company – customers but also employees – will be treated equally. But this conclusion raises one issue more. The neutrality in the case Achbita is conceived by a ECJ in a “negative” sense only, that is not to show any religious or belief symbols. On the contrary, the decision didn’t take into account the possibility of a positive sense of “neutrality”, according to witch everybody could wear the symbol of religious or belief adherence. An interesting line of reasoning is opened if we adopt a dialogical rather than a confrontational attitude towards the different ideological identities assuring an equal treatment to all groups. This conception was practiced, for example, according to aforementioned ECtHR Eweida [17], [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 [20] 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 [21]. 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 [22]”. So the dismissal appears as an extrema ratio disciplinary sanction and the fair balance is carried out taking into account the interests involved in the case and to limit the restrictions on the freedoms concerned to what is strictly necessary”. The Achbita decision imposes, as outcome of the fair balance between the contrasting fundamental rights – i.e., religious and beliefs freedom, on one hand, and the employer’s freedom in work regulation, on the other hand - the duty of the employer to look for an alternative solution instead of dismissing the worker, taking into account the inherent constraints to which the undertaking is subject, but also the necessity to do really all the employer can do to satisfy the request of the worker based on a religion or belief. It will be on the employer the burden of proof that no alternative solution is possible, or that the cost is too high. This principle, stated by the ECJ in a “creative interpretation”, is very important. It extends the enforcement of the duty of the employer to find a reasonable accommodation, stated by the Directive n. 78 only [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.) [26]. 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 [27]. 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” [28], 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 impose more than ordinary administrative costs, it would pose an undue hardship. This is a lower standard than the Americans with Disabilities Act (ADA) undue hardship defense to disability accommodation. However, the balance between employers’ and employees’ interests through religious accommodation can find many solutions. Examples of some common religious accommodations include flexible scheduling, voluntary shift substitutions or swaps, job reassignments, and modifications to workplace policies or practices. Also exceptions to workplace dress code may be R.A.: wearing a long white skirt instead of the white shorts requested by a sports club; or wearing a headscarf with the official colors of McDonald’s; or wearing a Sikh Kirpan, symbolic miniature sword, accepted because of its little dimensions and being not sharpened, like a butter knife [29]. In the Canadian law, according to the Canadian Charter, the “reasonable accommodation” at workplace is [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 [34]. On the contrary, the Canadian S.C. ruled that those circumstances didn’t make a “heavy violation” of rights of other workers, but only allows to respect a fundamental right related to the religious freedom. In this case the balance was in favor of the religious freedom and the decision adopted by the employer to satisfy it. On the other hand, the decision pointed out that also the worker asking for reasonable accommodation has to facilitate to reach a reasonable compromise and that the employer has to take into account if “the other workers feel to be treated unjustly”. The best solution, according to some scholars, would be to allow to use the leaves for personal reasons settled by the collective agreement, without creating any disparate treatment within workers [35]. So the respect of equality principle also appears important in the religious accommodation measures. This issue is a very controversial point.  In European Union law, the recent ECJ case - law Cresco 2019 [36], ruled a different principle compared to those of US and Canadian. The case-law was about the grant by a [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 may be subject to the ban of displaying religious or belief symbols; b) in case of refusal by the employee to respect the workplace regulation, the employer has to look for an alternative solution instead of dismissing her/he, if it is possible without additional cost.  The risk that the concept of the “image of neutrality” remains too vague, with wide space of arbitrary behavior by the employer, can be avoided by a very strict scrutiny of these inescapable conditions. Following this interpretation, I support the idea that the employee can maintain the right to wear religious or other symbols, for example, if the task requiring the contact with customers is not the principal job of the activity that the worker has to carry out. Also the specific economic sector of the employer’s business could be important in this perspective. As we noticed during the analysis, the duty of the employer to look for an alternative solution implies a duty of “reasonable [continua ..]

NOTE