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Samira Achbita v G4S Secure Solutions NV: a dangerous new concept of direct discrimination

Samira Achbita v G4S Secure Solutions NV: a dangerous new concept of direct discrimination

Declan O’Dempsey considers the opinion of the Advocate General in Case C-157/15 Samira Achbita and Centrum voor gelijkheid van kansen en voor racismebestrijding v G4S Secure Solutions NV.

Overview

Principles of law should be designed from behind a “veil of ignorance”, not standing on the ramparts of Fortress Europe.  The Advocate General (AG) in Achbita fails to stand in the appropriate place.  As a result she proposes a new, and dangerous, analysis of the concept of direct discrimination and seeks to weaken the protection given to religion and belief under Directive 2000/78.  In large part this is because of the fear which the migrant crisis is currently creating in certain parts of European society.

The AG recommends the following Order be made by the CJEU:

1)      The fact that a female employee of Muslim faith is prohibited from wearing an Islamic headscarf at work does not constitute direct discrimination based on religion within the meaning of Article 2(2)(a) of Directive 2000/78/EC if that ban is founded on a general company rule prohibiting visible political, philosophical and religious symbols in the workplace and not on stereotypes or prejudice against one or more particular religions or against religious beliefs in general. That ban may, however, constitute indirect discrimination based on religion under Article 2(2)(b) of that directive.

2)      Such discrimination may be justified in order to enforce a policy of religious and ideological neutrality pursued by the employer in the company concerned, in so far as the principle of proportionality is observed in that regard.

In that connection, the following factors in particular must be taken into account:

-        the size and conspicuousness of the religious symbol;

-        the nature of the employee’s activity;

-        the context in which she has to perform that activity; and

-        the national identity of the Member State concerned.

 

Background

The Belgian court asked whether Directive 2000/78’s concept of direct “religion and belief” discrimination applies to a ban on wearing “as a female Muslim, a headscarf at the workplace” where the employer’s rule “prohibits all employees from wearing outward signs of political, philosophical and religious beliefs at the workplace?”.

 

Conceptual flaws: Failing to see religion and belief as needing separate consideration

I explain here how treating religion as a separate protected characteristic from “belief” led the AG into a number of errors including a failure to analyse the belief held by those who wear the headscarf as a belief and instead simply analysing it as an expression of a religion.

1.  In my view, direct discrimination could only arise on the referred facts if a person with a belief whose content requires specific behaviour was treated less favourably than those whose beliefs are not behavioural in that way.  Such “behavioural belief” intrinsically links a belief with its expression.  According to the world view involved in the case, to believe in modesty you must cover your head .This comparison is not made in Achbita because the AG says that she will refer to “religion” for “convenience” (paragraph 33).  Consequently she does not analyse the comparative treatment of different beliefs.   I examine here principally the AG’s approach to direct discrimination.  I do not examine her analysis of proportionality in justification. 

The failure to analyse the situation in terms of belief leads the AG to suggest several dangerous routes to the court.

The concept of religion and belief may be fragmented across the EU, and will be distorted because of a perceived difference between religion (something private which should not get out of the private forum) and belief (respectable and capable of being public).

Dangerous redefinition (based on age) of the concept of direct discrimination in EU law

2.  There is a potentially very dangerous redefinition of the concept of discrimination in EU law by the AG: “discrimination is an unjustified difference of treatment”. 

To support this the AG cites an age discrimination case. However closer inspection shows that her argument is in fact solely based on selective quotation of recital 25 to the Directive.  The AG cites paragraph 28 of C-499/08 Andersen.  However this in turn is based on a selection of age discrimination cases and, primarily recital 25.

She suggests the idea that EU legislature proceeds on the assumption that it is “essential to distinguish between differences in treatment which are justified … and discrimination which must be prohibited”.  Here the AG quotes selectively from the Preamble and it is only in the footnote that there is any indication that she is impermissibly generalising from a special case.  She notes of this principle that this is “albeit in the context of age…”.   The AG is in fact citing recital 25 of the Directive.  However, in full, this provides:

“The prohibition of age discrimination is an essential part of meeting the aims set out in the Employment Guidelines and encouraging diversity in the workforce. However, differences in treatment in connection with age may be justified under certain circumstances and therefore require specific provisions which may vary in accordance with the situation in Member States. It is therefore essential to distinguish between differences in treatment which are justified, in particular by legitimate employment policy, labour market and vocational training objectives, and discrimination which must be prohibited.”

It is plain from this that the differences of treatment being spoke about are the differences of treatment “in connection with age”.  The recital is very clear that because differences of treatment in connection with age may be justified, specific provisions are required.  Moreover the recital does something which is never done in relation to religion and belief: it says that these specific provisions “may vary in accordance with the situation in Member States”.  The clear implication for the other protected grounds is that the provisions may not vary in this way.  It is only if specific derogation conditions are satisfied that the principles of direct discrimination will not apply.  In other words, the AG has sought to redefine direct discrimination based on a fundamental misunderstanding.

 

Dangerous redefinition of equal treatment in Directive 2000/78 based on human rights discrimination concepts

3.  The AG appears to be attempting to render the concept of equal treatment as expressed in the Directive 2000/78 equivalent to the concept of non-discrimination used in article 14 ECHR in suggesting that it involves the possibility of justification.  It is simply incorrect to imply that the concept of equal treatment expressed in the Directive is the same as that in the ECHR. However even if there was some basis for that approach it is clear that it is not the approach which was adopted by the EU legislature. 

There is no suggestion whatever in the Proposal for a Council Director establishing a General Framework for Equal Treatment in Employment and Occupation COM (1999) 565 final that the concept of religion was to receive special treatment and there is no suggestion that the concept of direct discrimination was intended to be open to the model of justification available in European Convention on Human Rights and Fundamental Freedoms law.

If a justification based approach to direct discrimination had been in the minds of the legislators there was a model readily available to them, not only in the form of Article 14 ECHR discrimination but in the approach that they actually adopted in relation to the ground of age in Article 6 of the Directive.  It would, at the least, have warranted special mention.

In relation to the choices made by the EU legislature, the list of protected characteristics is closed.  There was therefore no need to have a general principle of justification available (as there is in Article 14 of the ECHR).  Save in relation to age, the legislature decided not to permit justification of direct discrimination.  There are derogations (e.g. Article 2(5) and Article 4).  These are to be interpreted narrowly.  If the full text of the preamble is read there could be no confusion about this issue.  The general rule is that direct discrimination is not capable of justification.  

The AG says (in para 27) “even a direct difference of treatment is eminently justifiable under certain conditions” and blurs the distinction between derogations from the principle of equal treatment (distinct and clear) with justification for acts of discrimination.  The distinction between derogations and justification is a crucial one for the project of a stable body of CJEU law on discrimination.  

 

Fragmenting interpretation of EU law to respect national identity

4.  There is a risk created to the common interpretation of legal concepts if the AG’s opinion is followed.  France intervened to point out that its constitution is not neutral in the matter of religion and belief.  It supports a concept of (‘laïcité’). This is the constitutional principle requiring the absence of religious involvement in government affairs, especially the prohibition of religious influence in the determination of state policies; it is also the absence of government involvement in religious affairs, especially the prohibition of government influence in the determination of religion. France relied on the EU’s duty, enshrined in Article 4(2) TEU, to respect the national identities of Member States inherent in their fundamental structures, political and constitutional.  The AG rightly rejected this as narrowing the scope of the Directive, but suggests a principle which if adopted threatens to undermine the principle of common legal concepts within the EU (not simply in relation to social policy).  “National identity … must be duly taken into account in the interpretation of the principle of equal treatment which [the Directive] contains and of the grounds of justification for any differences of treatment.” (para 32)   

This opens the way for yet further fragmentation of a unified approach to interpretation in CJEU cases.  If such respect for national identity can be invoked for interpretation, it becomes difficult to say whether (even in cases involving EU wide concepts such as religion and belief) the CJEU’s interpretation holds good for every member state.  Any country (e.g. Malta) which has religion written into its constitution can now argue for special interpretations to be placed on the EU law to be implemented by it in this area and there is no reason why respect for national identity should not be invoked in other fields of application.

However, the legislative process in the EU permitted issues of national identity to be taken into account, and the principle in Article 4(2) TEU operates as a condition of legality of any legislation.  There is, in any event, nothing in the Directive which challenges the fundamental political and constitutional structures and the separate identities of Member States.  The concept of “national identity” is not a sociological concept, but indicates the inviolability of the separate nation states.

 

Analysing the belief in Hijab

5.  Those who believe they must wear a headscarf do so because of certain religious texts.  There is a religious difference between those Muslims who hold this belief and those who do not. Plainly this belief changes, and structures, the way in which a woman leads her life. A belief such as that a woman should do a particular act, which is intimately bound up with her personal identity and within a belief structure so as to inform the way she lives (i.e. the things she does and does not do) is protected by the concept of “belief” in the Directive.  

The AG says that “For the purposes of the present case, there is no need to draw a more precise distinction between ‘religion’ and ‘belief’. For the sake of simplicity, I shall therefore refer only to ‘discrimination based on religion’ or ‘religious discrimination’”, and then immediately goes on to treat the behaviour at issue in the case as a manifestation of a religion, rather than considering it as a (necessary) manifestation of a belief.

This is why it is necessary for the AG at para 38 to say:

“Following the approach taken by the European Court of Human Rights (ECtHR) in relation to Article 9 ECHR (20) and the practice of many national courts and institutions, (21) the Court of Justice too should regard the foregoing as a factor linking this case to religion to an extent sufficient to bring it within the substantive scope of the EU-law prohibition on religious discrimination.”

However analysed from the concept of belief, the question then is not whether wearing the headscarf is such as to be “linked to a sufficient extent” to a religion so that less favourable treatment because of that behaviour constitutes less favourable treatment because of religion.  If the question is asked whether this conduct is connected to the particular belief “I must cover my head to show modesty (or else be immodest)”, there can be no question.  Clearly it is intimately and intrinsically (indissociably) involved in the belief.  On this analysis the direct discrimination would be detected by a comparison of the treatment of those whose world view beliefs require certain behaviour (wearing particular clothing etc) and those whose world view beliefs do not.   All those whose world views were behavioural (in respect of clothing or symbols) were less favourably treated than all those whose world view beliefs were not behavioural in this sense.

 

But is religion different because it is a matter of choice?

6.  The AG makes much of the fact that religion is a matter of choice and seeks to imply that therefore it should be given lesser protection than the other grounds.  She says:

“43.      On cursory examination, a ban such as that imposed by G4S could be regarded as constituting direct discrimination within the meaning of Article 2(2)(a) of the Directive. It is certainly the case that, in so far as the internal company rule expressly prohibits G4S employees from wearing visible signs of their religious beliefs in the workplace, the wording of that company rule is directly linked to religion. Pursuant to that rule, Ms Achbita, an employee of Muslim faith, was dismissed because she insisted on wearing an Islamic headscarf at work in accordance with her religious beliefs, or, rather, because she refused to remove that headscarf during working hours.

44.      What is more, in its previous case-law concerning various EU-law prohibitions on discrimination, the Court has generally adopted a broad understanding of the concept of direct discrimination, and has, it is true, always assumed such discrimination to be present where a measure was inseparably linked to the relevant reason for the difference of treatment. (25)

45.      However, all of those cases were without exception concerned with individuals’ immutable physical features or personal characteristics - such as gender, (26) age or sexual orientation - rather than with modes of conduct based on a subjective decision or conviction, such as the wearing or not of a head covering at issue here.

46.      In the light of the foregoing, it appears that, on closer examination, a ban such as that at issue here cannot properly be classified as constituting direct discrimination.”

This is not a valid distinction of religion and belief compared to other characteristics.  There is, further, no scope to argue that religion and belief are to be protected in any different way.  This is due to the international texts on which the Directive is based.

Recital 4 in the Directive’s preamble specifically invokes UN International Covenant on Civil and Political Rights (ICCPR).  The ICCPR proclaims “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”.  It then protects belief and religion.

Article 18 of the ICCPR provides:

1.  Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.

3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. …”

The mutability of beliefs is therefore specifically protected by the Directive.  Moreover the restrictions on manifestation of religion or belief in ICCPR 18(3) mirror only those set out in article 2(5) of the Directive. This means that it is open to a state, such as France, to have clear laws which are not neutral as between beliefs (France prohibits religious displays in certain state controlled contexts of employment), but which are lawful both in human rights terms (see Ebrahimian c. La France [2015] ECHR 1041) and under article 2(5) of the Directive.

As the history of Europe leading up to the Treaties and the Framework Directive shows, the issue is not whether a person can change their belief but whether they should be made by less favourable treatment to change their belief.  The legislature has already chosen to protect religion and belief in the same way as other grounds.

 

A move away from “indissociably” linked

7.  If I discriminate against you on the basis of a characteristic which is indissociably linked with a protected characteristic, the treatment is likely to be seen as direct discrimination because of the protected characteristic rather than indirect discrimination because I would treat anyone with that (indissociably linked) characteristic in the same way .  I would do this because of the link. 

In Achbita the behaviour banned was the wearing of any clothing which was symbolic of an ideological or belief position. All those who want to wear such clothing are disadvantaged because of the nature of the ban.  Those who neither need not want to use clothing in this way are not affected. 

In Bressol, AG Sharpston, citing AG Jacobs in Case C-79/99 Schnorbus, pointed out that “The discrimination is direct where the difference in treatment is based on a criterion which is either explicitly that of sex or necessarily linked to a characteristic indissociable from sex. It is indirect where some other criterion is applied but a substantially higher proportion of one sex than of the other is in fact affected” (para AG 52 of Case C-73/08 Bressol v Gouvernment de la Communauté Française (Case C-73/08) [2010] ECR I-2735).  In the following paragraph she points out: “That analysis of what constitutes direct discrimination can be adapted to suit direct discrimination on any ground”.  

However HOwthe AG suggests (para 44) that there should be a move away from the concept that where a measure is inseparably linked to the relevant reason or the difference of treatment it is direct discrimination.  She says:

“44.      What is more, in its previous case-law concerning various EU-law prohibitions on discrimination, the Court has generally adopted a broad understanding of the concept of direct discrimination, and has, it is true, always assumed such discrimination to be present where a measure was inseparably linked to the relevant reason for the difference of treatment. (25)

45.      However, all of those cases were without exception concerned with individuals’ immutable physical features or personal characteristics - such as gender, (26) age or sexual orientation - rather than with modes of conduct based on a subjective decision or conviction, such as the wearing or not of a head covering at issue here.

46.      In the light of the foregoing, it appears that, on closer examination, a ban such as that at issue here cannot properly be classified as constituting direct discrimination.”

The basis of drawing a distinction is the mutability of belief when compared, it is said, to the other protected grounds (para 45).  As I have said above, core beliefs warrant protection not because they are immutable, but because of the central role they play in the dignity of the individual (emphasised in the Recitals).  

What was at issue was not whether Muslims in general would be treated less favourably than non-Muslims, as those who do not share the core belief that head covering is necessary for modesty would not be less favourably treated. The question was whether anyone who holds a world view belief requiring them to exhibit certain behaviour (or clothing) would be treated less favourably than a person whose world view belief did not have that indissociable link to behaviour. 

The problem with failing to analyse the case in terms of belief comes to the fore.  Religion per se is defined by the AG as “with a person’s faith (forum internum)”.   The concept of the forum internum breaks down when what is at issue is whether a person’s protected behavioural belief is being suppressed. This is because behavioural beliefs cross of necessity from the forum internum to the external forum. In relation to such beliefs there is no real element of choice for the person.  The belief, including the concomitant behaviour, is expressed or it does not exist in the person.   

So it is a non-sequitur for the AG to reason from the non-volitional nature of some of the other protected characteristics to a statement at (para 46) that a ban on exhibition of “religious” symbols cannot be classified properly as constituting direct discrimination.  There is no explanation of why it is an impossibility.  It leaves unanswered the question of whether a belief whose content is purely behavioural can result in direct belief discrimination if it is banned.  Obviously it can but the definition of the belief in issue is absolutely crucial.   

In Azmi v Kirkless [2007] I.C.R. 1154 the ET compared the Claimant’s behaviour with that of a person who wanted to wear a balaclava.  This was an objectionable comparison. However the ET focussed on whether a person who behaved in the similar way without a core belief would be treated in the same way.  It concluded that they would have been in the circumstances of educating children who needed to see the face of the person teaching them.  In Achbita the relevant treatment was the difference between that given to a person who covers their head for a non-core belief reason and that which would be given to someone who covered their head for a core-belief reason. If that comparison is made it is clear that unless the piece of clothing was considered to express a core belief (here religion but equally any other philosophical belief) it would not be banned.  The ban was on symbolic clothing (in essence), and thus it was a ban on all belief related clothing.   The essence of the treatment was that the clothing banned was symbolic of a core belief.

So by making the comparison one between visible symbols of religious beliefs the direct nature of the discrimination can be sidestepped by saying that such a company rule “is not limited to a ban on the wearing of visible signs of religious beliefs, but, at one and the same time, also explicitly prohibits the wearing of visible signs of political or philosophical beliefs. The company rule is therefore an expression of a general company policy which applies without distinction and is neutral from the point of view of religion and ideology.”

The AG states “this leaves only a difference in treatment between employees who wish to give active expression to a particular belief…and their colleagues who do not feel the same compulsion” (para 53).  The AG at this point ceases to deal with the belief that was at the centre of the factual dispute:  a woman must behave in a particular way for modesty.  This has all the hallmarks of a behavioural belief rather than simply the expression of a broader conceptual belief. 

Viewed in the context of beliefs the remarks of the AG at (para 55) that it would be different if the ban proved to be based on stereotypes or prejudices present difficulties.  Whilst it is true that evidence of prejudice against religious beliefs might turn a neutral rule into a directly discriminatory rule, the absence of such stereotyping is not decisive to the question of whether a ban on behavioural beliefs directly discriminates against those holding the belief. In any event many belief related stereotypes often do form the basis for such bans.  Some of the attitudes relating to these stereotypes can be seen when the AG seeks to analyse the justification of indirect discrimination and the genuine and determining occupational requirements exception.

 

An unnecessary blurring of the distinction between justification and exception

8.  The AG (para 58) claims that it is necessary in the case of direct discrimination to see whether the underlying difference in treatment can be justified under the Directive.

The AG says that the legitimate aims for justification of indirect discrimination include those under A4(1) (genuine and determining occupational requirements) and A 2(5) (derogations based on state measures to protect, amongst other things, the rights of others).

In Art 4 it is not the ground on which the difference of treatment is based but a characteristic related to that ground which must constitute a genuine and determining occupational requirement (para 68). This requires the protected ground to be excluded as the characteristic on the basis of which the differential treatment can be treated as justified as a GDOR.  Where a belief is intimately linked to behaviour, the characteristic of belief must be excluded. However the AG’s focus on religion draws her away from this conclusion. If the protected belief is that the person must do something, then that is inseparable from the characteristic of belief. The question of whether there is an inseparable link needs to be explored.  Sadly the AG does not do this exercise because she views the question in terms of whether Muslims (generally) are affected, rather than whether a belief group within Muslims are affected. The AG’s comment that the company did not prohibit its employees from belonging to a particular religion misses the point (para 68). In belief terms the company was prohibiting all world view belief groups which required particular behaviour, including the behaviour of wearing a headscarf.  It was not prohibiting the behaviour of anyone the essence of whose belief system did not require particular and concrete expression.

If the situation is properly analysed as a situation involving direct discrimination therefore, it is not possible to use Article 4 to permit the belief to be suppressed. It is because the AG does not analyse the question in terms of belief but solely religion that it is possible to say that the company only required employees to refrain from wearing certain items of clothing.

 

Neutrality

9.  The AG considered that Article 4 could be employed to achieve “neutrality”.  The objective of the company appears to have been to achieve a policy of strict religious and ideological neutrality (para 74). If the ban passes the test of relating to a characteristic relating to belief, there is no difficulty in deciding that it was a genuine and determining occupational requirement (para 84). Whilst ruling out bans to pursue inhuman or pandering to third party desires,   the ban on expressive clothing was part of the policy of neutrality (para 93). The AG thereafter has little difficulty in finding that the ban was proportionate (para 111).  As the aim of the Directive is to protect belief as well as religions, if the law is not properly analysed in terms of the belief in question, the GDOR principle can be used to undermine the aims of the Directive by allowing an employer to focus on the behaviour required by the behavioural belief as the characteristic related to the belief.  However it is so indissociably bound up with the belief that it is a false distinction.

The provisions of the Directive which could have allowed an employer to behave in a way which prohibited exhibition of religious and other world view symbols and clothing were not capable of being used.  These are contained in Article 2(5) and relate to the state measures exception.  The state could bring into force a measure prohibiting certain clothing, regardless of whether this would otherwise constitute direct discrimination against a belief group, providing it was in pursuit of a legitimate aim and was proportionate.  The legitimate aims capable of justifying such an intervention are narrow however.   

 

Conclusion

What is dangerous about the AG’s opinion is that is seems to suggest that because religious and other beliefs can change they are therefore less worthy of protection compared to the allegedly immutable personal characteristics.  This is simply inconsistent with the aims of the Directive as expressed in the preamble.   

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