The Bougnaoui case

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prohibiting the visible wearing of signs of political, philosophical or religious beliefs».³²¹ Lastly, the CJEU claimed that the prohibition at issue could be considered necessary if it covered only employees who interacted with customers and, once again, ruled for the national court to ascertain whether G4S could have offered Ms Achbita an alternative post not involving any contact with clients, instead of straightforwardly dismissing her.³²²

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company image and of not infringing upon customers’ beliefs. The same conclusions were reached also by the Court of Appeal. Ms Bougnaoui then brought an appeal before the Court of Cassation, claiming that the Court of Appeal had infringed the national legislation implementing Directive 2000/78.³²⁵ The Court of Cassation finally decided to stay the proceedings and refer to the CJEU the question of whether the wish of a customer not to have services supplied by an employee wearing the Islamic veil could be considered as a genuine and determining occupational requirement within the meaning of Art. 4(1) Directive 2000/78.

In answering the preliminary question, the Court of the EU firstly noted that, from the information available, it could not ascertain whether the difference of treatment at stake constituted direct or indirect discrimination. It then held that it was for the national court to verify the existence of a Micropole SA rule actually prohibiting all employees from exhibiting any outward symbol of political, philosophical or religious beliefs. Just as emerged in G4S, if such a generally applicable ban existed, it would be indirectly discriminatory within the meaning of Art. 2(2)(b) Directive 2000/78.³²⁶ The CJEU then stressed that, if the French judges found the applicant’s dismissal not to be based on a general ban but to be specific to the Islamic headscarf, Art. 4(1) Directive 2000/78 could be successfully invoked only in very limited circumstances and refers to requirements that are objectively demanded by the nature of the occupational activities concerned or by the context in which they are carried out. Accordingly, the provision «cannot […]

cover subjective considerations, such as the willingness of the employer to take account of the particular wishes of the customer».³²⁷ The CJEU thus concluded that Art. 4(1) Directive 2000/78 did not cover Ms Bougnaoui’s professional performance, for the

325 Transposing Directive 2000/78, the French Labour Court enshrines, in Art. L. 1121 -1, that «no one may limit personal rights or individual or collective liberties by any restriction which is not justified by the nature of the task to be performed and proportionate to the aim sought». Art. L. 1132-1 establishes that «no person may be excluded from a recruitment procedure or from access to work experience of a period of training at an undertaking, no employee may be disciplined, dismissed or be subject to dis criminatory treatment, whether direct or indirect, […] in particular as regards remuneration, […] incentive or employee share schemes, training, reclassification, allocation, certification, classification, career promotion, transfer, or contract renewal by reason of his […] religious beliefs». Lastly, Art. L. 1133-1 enshrines that «article L.

1132-1 shall not preclude differences of treatment arising from a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate».

326 See Judgment Bougnaoui ADDH, above, paras. 31-32.

327 Ibid., para. 40.

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prohibition of the Islamic veil could not be considered a genuine and determining occupational requirement within the meaning of that provision.

While both G4S and Bougnaoui rulings largely mirrored Advocate General Kokott’s Opinion, rendered in relation to the former case, it should be noted that Advocate General Sharpston defended quite an opposite view in her Opinion on Bougnaoui. In particular, Ms Sharpston argued that a ban generally prohibiting employees from wearing any visible sign of philosophical, religious and political belief during working hours is to be considered as directly discriminatory. Since Ms Sharpston touched on sensitive points that will be further elaborated in the next sections, it appears necessary to give a brief account of her Opinion.

The difference between Ms Sharpston’s line of reasoning and that of Ms Kokott lies mainly in the interpretation given to the concept of “religion”. The latter Advocate General interpreted religion as a sort of ideology, stressing that the neutrality policy adopted by G4S covered both religious and political beliefs. Notably, Ms Kokott noted that

«[the] requirement of neutrality affects a religious employee in exactly the same way that it affects a confirmed atheist who expresses his anti-religious stance in a clearly visible manner by the way he dresses, or a politically active employee who professes his allegiance to his preferred political party or particular policies through the clothes that he wears (such as symbols, pins or slogans on his shirt, T-shirt or headwear)».³²⁸

Indeed, according to Ms Kokott, individuals’ immutable physical features or personal characteristics, such as gender, age or sexual orientation, fundamentally differ from conduct based on a subjective decision or conviction, such as the wearing or not of a headscarf.³²⁹ Whereas the former characteristics are «an unalterable fact» of an individual’s identity, the latter are to be considered as «an aspect of an individual’s private life, and one, moreover, over which the employees concerned can choose to exert an influence».³³⁰ Advocate General Kokott further argued that a company policy such as that

328 Opinion of Advocate General Kokott, above, para. 52.

329 Ibid., para. 45.

330 Ibid., para. 116.

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in the main proceedings does not concern «religion per se, that is to say […] a person’s faith (forum internum)», but only «the external manifestation of [that] religion […], and thus a single aspect of [employees’] religious practice (forum externum)».³³¹ It was from this perspective that both Ms Kokott and the EU judges concluded that a company policy prohibiting all employees from wearing any visible symbol of political, religious and philosophical convictions is not directly discriminatory, since such a policy results in a difference of treatment only between employees feeling the urge to give active expression to a particular belief and their colleagues who do not have such an impulse and, therefore, does not constitute a less favorable treatment directly linked to religion within the meaning of Art. 2(2)(a) Directive 2000/78. On the contrary, Advocate General Sharpston conceived religion as an element of identity, comparable to an individual’s ethnic origins or sex:

«[…] to someone who is an observant member of a faith, religious identity is an integral part of that person’s very being. The requirements of one’s faith […] are not elements that are to be applied when outside work […] but that can be politely be discarded during working hours. Of course, depending on the particular rules of the religion in question and the particular individual’s level of observance, this or that element may be non-compulsory for that individual and therefore negotiable. But it would be entirely wrong to suppose that, whereas one’s sex and skin colour accompany one everywhere, somehow one’s religion does not».³³²

Accordingly, in contrast to what argued by Ms Kokott, religious identity cannot be “left at the door” when entering the company’s premises. Advocate General Sharpston further noted that Art. 2(2)(a) Directive 2000/78 covers not only the religion of an employee (forum internum) but also the manifestation of that religion (forum externum) and, thus, concluded that a general policy applying to all religious symbols such as that in the main proceedings is to be considered as directly discriminatory towards Ms Bougnaoui, for she had been treated less favourably than another colleague who had not chosen to manifest his/her religious belief by wearing a particular garment.³³³

331 Ibid., para. 114.

332 Opinion of Advocate General Sharpston, above, para. 118. [emphasis added]

333 See Opinion of Advocate General Sharpston, above, paras. 83-88.

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Two other elements that distinguish Advocate General Sharpston’s line of reasoning deserve attention. Firstly, in contrast to both Ms Kokott and the CJEU, she dealt extensively with the potential impact of Bougnaoui (and G4S) on the EU system. In particular, she noted that the changes occurred in recent years in terms of social customs and labour market within the Union call for a general reflection on the co-existence between individuals with different faiths and ethnic origins. From this perspective, «the issues that arise in this Opinion do not relate to the Islamic faith or to members of the female sex alone».³³⁴ Ms Sharpston further observed that the adoption of a clear position on the part of the CJEU on the wearing of religious symbols and garments at work might help to approximate Member States’ laws in this field. Notably, «the legislation and case-law of the Member States relating to the wearing of religious apparel in an employment context […] displays a wide degree of variety»:³³⁵ certain countries, as France and Belgium, have adopted laws prohibiting generally certain types of apparel in public places in the name of the principles of laïcité and neutralité, other States such as Germany show more tolerance and allow employers to prohibit their employees from wearing religious symbols only under exceptional circumstances, while still others such as the Netherlands have explicitly affirmed that bans of this kind are directly discriminatory.³³⁶ Ms Sharpston also stressed the economic and moral impact of discrimination, quoting Advocate General Poiares Maduro’s words in relation to the Coleman³³⁷ case:

«[…] People must not be deprived of valuable options in areas of fundamental importance for their lives by reference to suspect classifications. Access to employment and professional development are of fundamental significance for every individual, not merely as a means of earning one’s living but also as an important way of self-fulfilment and realization of one’s potential. The discriminator who discriminates against an individual belonging to a suspect classification unjustly deprives her of valuable options. As a consequence, that person’s ability to lead an autonomous life is seriously compromised since an important aspect of her life is shaped not by her own choices but by the prejudice of someone else. By treating people belonging to these groups less well because of their

334 Opinion of Advocate General Sharpston, above, para. 30.

335 Ibid., para. 36.

336 Ibid., paras. 36-44.

337 See Court of Justice of the European Union, judgment of 17 July 2008, case C-303/06, Coleman, EU:C:2008:415.

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characteristic, the discriminator prevents them from exercising their autonomy. At this point, it is fair and reasonable for anti-discrimination law to intervene. In essence, by valuing equality and committing ourselves to realising equality through the law, we aim at sustaining for every person the conditions for an autonomous life».³³⁸

The Advocate General thus confirmed that the importance of these cases should not be underestimated for they may significantly shape the Union’s – and by extension its Member States’ – secular approach, notably in the field of religious discrimination in the workplace.

Secondly, despite having concluded that a company policy such as that in the main proceedings constitutes direct discrimination, Ms Sharpston considered the possibility that the CJEU may disagree with her reasoning and addressed also the question of indirect discrimination. Assuming that a hypothetical company rule imposing a neutral dress code on all employees actually existed, Ms Sharpston took Advocate General Kokott’s view in G4S that such policy constituted indirect discrimination within the meaning of Art.

2(2)(b) Directive 2000/78 and considered whether it could be justified either by reference to Art. 4(1) Directive 2000/78 or by a legitimate aim, achieved through appropriate and necessary means. As regards Art. 4(1), after observing that such provision must be interpreted strictly and that the CJEU had previously ruled that direct discrimination cannot be justified on the ground of the potential financial loss of the employer,³³⁹ Ms Sharpston claimed that the freedom to conduct a business «is not an absolute principle but must be viewed in relation to its function in society».³⁴⁰ For the above reasons, she concluded that Art. 4(1) Directive 2000/78 cannot be said to apply to the occupational activities at stake in Bougnaoui, for nothing suggested that the applicant, by wearing the hijab, was unable to perform her duties as an IT engineer. As regards the second possibility of justification, also Ms Sharpston found the company aim to be legitimate.³⁴¹ However, she stressed that this does not imply an a priori sacrifice of religious freedom

338 Opinion of Advocate General M. Poiares Maduro delivered on 31 January 2008, case C-303/06, S.

Coleman v. Attridge Law and Steve Law, paras. 8-10, quoted in Opinion of Advocate General Sharpston, above, para. 71. [emphasis added]

339 See Court of Justice of the European Union, judgment of 3 February 2000, case C-207/98, Mahlburg, EU:C:2000:64, para. 29, cited in Opinion of Advocate General Sharpston, above, para. 100.

340 Opinion of Advocate General Sharpston, above, para. 100.

341 Ibid., para. 115.

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in the name of the freedom to conduct a business but, rather, requires an accommodation so as to enhance the harmonious co-existence between these two protected rights.³⁴² From this perspective, the analysis of the question of proportionality stricto sensu assumes key importance. While admitting that particular forms of religious observance may not be regarded as essential by certain believers, who will therefore abide by an internal policy prohibiting the wearing of religious garments without conflict, and that there may be instances where the particular type of observance that the employee considers as essential to the practice of his/her faith actually prevents him/her to carry on a particular job, Ms Sharpston noted that more often the employer and the employee will need to seek an agreement so as to accommodate their conflicting rights.³⁴³ In relation to the circumstances of the main proceedings, she recognized that it was for the national judges to have the ultimate responsibility for reaching a decision in the matter. However, in contrast to Ms Kokott and the judges of the EU, she considered unlikely that the restrictive measure adopted by Micropole SA could be considered as proportionate. On the one hand, she rejected the employer’s argument that the restriction was proportionate due to the fact that Ms Bougnaoui’s working time during which she was in contact with customers and therefore prohibited from wearing the hijab was not greater than five percent of her working hours, noting that «the amount of time in respect of which a prohibition may apply may have no bearing on the employee’s reason for seeking to wear the head covering in question».³⁴⁴ On the other, she argued that the employee’s right to manifest her religious beliefs should be given more weight than the employer’s interest in generating maximum profit. Indeed, «Directive 2000/78 is intended to confer protection in employment against adverse treatment […] on the basis of one of the prohibited factors.

It is not about losing one’s job in order to help the employer’s profit line».³⁴⁵