CJEU | Internal rule of a company barring any religious manifestation in the workplace through clothing or words, is not direct discrimination if the rule is applied in a general way

Court of Justice of the European Union (Second Chamber): In the instant dispute before the CJEU wherein the applicant's internship application with the defendant company was not considered as she refused to comply with the prohibition, imposed by company on its employees, on manifesting, in particular through their clothing, their religious, philosophical or political beliefs. The Bench comprising of A. Prechal, (President of the Chamber) M.L. Arastey Sahún, F. Biltgen (Rapporteur), N. Wahl and J. Passer, Judges, while deliberating over the matter, ruled that Article 2(2)(a) of Council Directive 2000/78¹ must be interpreted as meaning that an undertaking's terms of employment which prohibits workers from manifesting, through words, clothing, or in any other way, their religious or philosophical beliefs, does not constitute, (with regard to workers who intend to exercise their freedom of religion and conscience through the visible wearing of a sign or an item of clothing with religious connotations) direct discrimination on the ground of religion or belief, provided that that provision is applied in a general and undifferentiated way.

Background of the Case

L.F (the applicant) had started the proceedings against SCRL- a cooperative limited liability company whose main activity consists of the letting and operating of social housing. On 14-03-2018, the applicant, who is of Muslim faith and wears the headscarf, made an unsolicited application to SCRL with a view to completing a six-week unpaid internship there. She attended the interview for the same which went well. The SCRL asked her that if she could agree to comply with the neutrality rule promoted within SCRL.

SCRL's Neutrality Rule provides that ‘workers undertake to respect the company's strict policy of neutrality' and that those workers ‘will therefore make sure not to manifest in any way, either by word or through clothing or any other way, their religious, philosophical or political beliefs, whatever those beliefs may be'.

L.F. refused to remove her headscarf and comply with the afore-stated neutrality rule. No further action was taken on her application; however, in April 2018, she renewed her request for an internship with SCRL, offering to wear another type of head covering. In response to that new request, SCRL informed the applicant in the main proceedings that it was unable to offer her such an internship, on the ground that no type of head covering was permitted on its premises, be it a cap, a hat, or a headscarf.

As a result, L.F. reported a case of discrimination and subsequently an action for a prohibitory injunction before the Tribunal du Travail Francophone de Bruxelles (Brussels Labour Court, Belgium) complaining that there has been a failure to conclude an internship agreement, which she believed to be directly or indirectly based on religious ground. L.F. accused SCRL of having infringed the provisions of the Belgian General Anti-discrimination Law which provides a general framework for combating discrimination on the grounds of age, sexual orientation, civil status, birth, financial situation, religious or philosophical belief etc.

The Brussels Labour Court decided to stay the proceedings and refer the following questions to the Court of Justice-

1. Whether ‘religion or belief' contained in the Directive on equal treatment in employment and occupation, are to be interpreted as two facets of a single protected criterion or, on the contrary, as two separate criteria.

2. If Article 1 of Directive 2000/78 is to be interpreted as meaning that religion and belief are two facets of the same protected criterion, would that prevent the national court, from continuing to interpret a rule of national law as meaning that religious, philosophical and political beliefs are separate protected criteria?

3. Whether the prohibition on the wearing of a sign or an item of clothing with connotations contained in SCRL's terms of employment constitutes direct discrimination based on religion.

Observations of the Court

While perusing the questions, the Court made the following observations-

• Vis-a-vis the First Question, the Court noted that Article 1 of Directive 2000/78 refers to ‘religion' and ‘belief' together, as does the wording of various provisions of primary EU law, like Article 21 of the Charter of Fundamental Rights of the European Union which refers, among the various grounds of discrimination listed therein, to ‘religion or belief'. As regards the expression ‘whatever those beliefs may be' used in relation to the beliefs referred to in the terms of employment at issue in the main proceedings, the protection against discrimination guaranteed in Directive 2000/78 covers only the grounds which are exhaustively listed in Article 1 thereof, so that that directive does not cover political or trade union belief; nor does it cover artistic, sporting, aesthetic or other beliefs or preferences. The protection of those beliefs by the Member States is not, therefore, governed by the provisions of that directive. Thus, Article 1 of Directive 2000/78 must be interpreted as meaning that the words ‘religion or belief' contained therein constitute a single ground of discrimination, covering both religious belief and philosophical or spiritual belief.

• While considering the Second and the Third questions, the Court noted that an internal rule of an undertaking which prohibits only the wearing of conspicuous, large-scale signs of, religious or philosophical belief may constitute direct discrimination within the meaning of Article 2(2)(a) of Directive 2000/78 where that criterion is inextricably linked to one or more specific religions or beliefs. It was further noted that if such prohibition is applied without distinction and treating all workers of the undertaking in the same way by requiring them, in a general and undifferentiated way to dress neutrally, then such bar would not be considered discriminatory.

• Taking note of Article 10 of the Charter of Fundamental Rights of the European Union, the Court pointed out that right to freedom of conscience and religion, which is enshrined in Article 10(1) of the Charter and forms an integral part of the relevant context in interpreting Directive 2000/78.

• The Court observed that an undertaking's internal rule, such as the one in dispute, may constitute a difference in treatment that is indirectly based on religion or belief, for the purposes of Article 2(2)(b) of Directive 2000/78, if it is established — that the apparently neutral obligation it encompasses results in persons adhering to a particular religion or belief, being put at a particular disadvantage. However, such a difference in treatment would nonetheless not constitute indirect discrimination, within the meaning of Article 2(2)(b), if it were objectively justified by a legitimate aim and the means of achieving that aim were appropriate and necessary. Concerning the ‘legitimate aim of an employer', the Court noted that mere desire of an employer to pursue a policy of neutrality, is not sufficient as such to justify objectively a difference in treatment indirectly based on religion or belief.

• Concerning the interpretation of Article 1 by the national court, the CJEU observed that Article 1 of Directive 2000/78 must be interpreted as precluding provisions of national legislation, which are intended to ensure the transposition of that Directive into national law and which are construed as meaning that religious belief and philosophical belief constitute two separate grounds of discrimination, from being taken into account as ‘provisions which are more favourable to the protection of the principle of equal treatment.

[LF v. SCRL, Case C-344/20, decided on 13-10-2022]

*Sucheta Sarkar, Editorial Assistant has prepared this brief.