Content Regulation / Censorship, Religious Expression
Otto-Preminger-Institut v. Austria
In Progress Mixed Outcome
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The European Court of Justice (ECJ) issued a preliminary ruling that a blanket ban on wearing any signs of religious or political beliefs did not constitute direct discrimination. However, it said the ban could constitute indirect discrimination if it disproportionately affected members of a class and did not have a legitimate aim that was appropriate and necessary. The ECJ referred the case back to the referring court on the basis that the preliminary ruling would assist in the ongoing proceedings.
The Court of Cassation in Belgium had made the request to the ECJ in respect of proceedings brought by Ms Samira Achbit, a Muslim, and the Centre for Equal Opportunities and Combating Racism (Centrum), against G4S Secure Solutions NV (G4S) following Ms Achbita’s dismissal for insisting that she wished to wear an Islamic headscarf at work.
The ECJ reasoned that whilst G4S’ internal rule prohibiting employees wearing any visible political, philosophical or religious signs in the workplace did not amount to direct discrimination under Article 2(2)(a) of Directive 2000/78, it might constitute indirect discrimination within Article 2(2)(b). An obligation like the blanket ban would constitute indirect discrimination if its apparently neutral nature results in putting individuals of a particular religion at a disadvantage when it is applied to them. However, even if this treatment amounts to indirect discrimination, it may still fall within the constraints of the law if it is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. The ECJ said it was for the referring court to ascertain whether the ban amounted to indirect discrimination.
G4S is a company providing reception services that employed Ms Achbita. When Achbita started working for G4S the company had an unwritten rule that no worker could wear visible signs of their political or religious beliefs while working. Achbita, a Muslim, informed her supervisor that she intended to wear an Islamic headscarf and was informed this would be prohibited. Sometime thereafter, G4S amended its workplace regulations to include the following statement, “employees are prohibited, in the workplace, from wearing any visible signs of their political, philosophical or religious beliefs and/or from engaging in any observance of such beliefs” [para. 19]. Achbita was then dismissed for insisting that she wanted to wear a headscarf, and given three months severance.
Achbita brought an action in the Labour Court in Antwerp, Belgium, which dismissed the action. The Higher Labour Court, Antwerp denied Achbita’s appeal, ruling that the prohibition was a neutral blanket ban on wearing any signs of religious or political beliefs and did not give rise to direct discrimination and there was no evidence to support a finding of indirect discrimination. Achbita appealed to the Court of Cassation which stayed the proceedings to refer the following question to the Court of Justice: “Should Article 2(2)(a) of Directive 2000/78 be interpreted as meaning that the prohibition on wearing, as a female Muslim, a headscarf at the workplace does not constitute direct discrimination where the employer’s rule prohibits all employees from wearing outward signs of political, philosophical and religious beliefs at the workplace?” [para. 21].
The ECJ noted that the purpose of Directive 2000/78 was to combat discrimination and promote the equal treatment of citizens. It referred to the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union, both of which recognized the right to freedom of religion. It made further reference to international conventions recognizing the right of all persons to equality before the law and in employment including the Universal Declaration of Human Rights; the United Nations Convention on the Elimination of All Forms of Discrimination against Women; United Nations Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights; and Convention No 111 of the International Labour Organisation (ILO).
The Court said that the rule referred to the wearing of visible signs of political, philosophical or religious beliefs and therefore covered any manifestation of such beliefs without distinction. The rule must, therefore, be regarded as treating all workers in the same way and that there was no evidence to suggest that it was applied differently to Achbita compared with any other worker. There was therefore no direct discrimination. However, the Court found that there may be a cause of action for indirect discrimination, if a neutral obligation results in putting individuals of a particular religion at a disadvantage when it is applied to them. However, even if this treatment amounts to indirect discrimination, it may still fall within the constraints of the law if “it is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary” [para. 35]. Having issued its guidance, the ECJ referred the matter back to the national Court.
Accordingly, the Court found that the neutral blanket ban in the workplace did not constitute direct discrimination, however, it could constitute indirect discrimination if it puts members of a certain religion at a particular disadvantage unless it is justified by a legitimate aim that is appropriate and necessary.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
As the ECJ only issued a preliminary ruling giving the national court guidance on points of interpretation to assist in adjudicating the case, it did not expand or contract expression. However, it is worth noting that the ECJ said that prohibiting a Muslim from wearing an Islamic headscarf at work could result in indirect discrimination.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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