Should EU court let bosses ban hijabs?

Judges would have received different advice if their colleague had not been sacked

A former member of the European Court of Justice has publicly disagreed with an opinion issued by the advocate general who was brought in to replace her last year.

Eleanor Sharpston QC has just published a “shadow opinion” on two high-profile cases currently under consideration by the court. The claims were brought against employers in Germany by women who lost their jobs for wearing a hijab — the Islamic headscarf — at work.

In Sharpston’s opinion, “an employer’s desire to pursue a policy of political, ideological and religious neutrality in order to accommodate the perceived wishes of his customers” cannot be justified.

By contrast, Athanasios Rantos, in an opinion delivered on 25 February, advised the EU court that a private undertaking could lawfully ban “the wearing of conspicuous, large-scale signs of political, philosophical or religious beliefs in the workplace”.

Relying on a case decided by the European Court of Human Rights in 2013, Rantos drew a distinction between religious symbols that he regarded as conspicuous and what he called “signs, whether visible or not, that are small in scale (in other words, discreet) of political, philosophical or religious beliefs in the workplace which are not noticeable at first glance”. These, he thought, could not “upset those customers of the undertaking who are not of the same religion or do not share the same beliefs as the employee(s) concerned”.

His opinion raises more questions than it answers. To take an obvious example, the head-covering worn at all times by some Jewish men can vary greatly in size. In some cases, it may not be possible to tell whether an individual, seen from the front, is wearing a kippah. In other cases, it is obvious.

Rantos said it was not the job of the EU court to give a precise definition of small-scale — it depended on the “context in which the sign is worn” — but in his view “an Islamic headscarf is not a small-scale religious symbol”. Sharpston said the fact that head-coverings varied in size “merely demonstrates the intrinsic bizarreness of a rule that bans large-scale signs and the uncertainty to which it may lead”.

Eleanor Sharpston QC

The 11 advocates general at the EU court sit with the judges and assist them by delivering non-binding opinions in the most difficult cases. Sharpston’s unofficial opinion — published on the EU Law Analysis blog edited by Professor Steve Peers of Essex University — poses a unique dilemma for the EU judges because it carries much greater legal weight than the official opinion delivered last month.

Rantos took part in the hearing on 24 November last year, having recruited an entirely new team of legal assistants following his appointment on 10 September. But Sharpston and her team of experts in EU law had been preparing for the case since it was allocated to her in 2019. She served as an advocate general for nearly 15 years and — unlike Rantos — had worked at the court earlier in her career.

On the other hand, Sharpston was shoddily treated by the court last year. She was removed from her position on 10 September, even though her mandate had more than a year to run. Rantos was sworn in minutes after the court’s vice-president summarily overturned an injunction Sharpston had obtained from the court a few days earlier. She is now challenging the legal basis for her dismissal. So it seems unlikely that the court will even mention her shadow opinion when it comes to give judgment, let alone admit to following it.

And yet Rantos’s opinion has not been well received. Dr. Martijn van den Brink, a postdoctoral fellow at the University of Oxford, was scathing about it:

That an advocate general thinks that that it is not the perpetrator of discrimination who must change his intolerant attitudes, but rather the victim of discrimination who must change her religious practices, beggars belief.

As van den Brink explained, the EU court of justice (CJEU) has had to grapple with this problem before:

Few CJEU judgments in recent years have received more criticism than the “headscarf judgments”, Achbita and Bougnaoui. In particular the decision in Achbita that private employers can legitimately pursue a policy of neutrality and ban expressions of political, religious, or philosophical belief at work, proved contentious. A wealth of incisive and insightful criticism of the judgment has been provided (for example, here and here), and it is now for the CJEU to show whether it is prepared to address past mistakes. 

The two German cases currently awaiting a ruling from the court, IX v WABE and Müller Handels had provided it with an excellent opportunity to do so, said van den Brink. But, he added, Rantos’s opinion “may be even more unpalatable than the Achbita judgment itself”.

The court often follows the opinion of the advocate general assigned to the case — though perhaps less often in the most difficult cases that come before it. So long as the judges have more interest in the law than in settling old scores, the change of advocate general last year should make no difference to the judgment they deliver in due course. But, as van den Brink observed, that will depend on whether the court is “too proud to admit its past mistakes or too prejudiced to understand them”. 

WABE

The first case before the court involves WABE, a non-denominational charity that runs day centres for children. A woman known as IX worked for WABE as a special needs carer. In 2016, she began wearing a hijab. In 2018, shortly before she was due to return from maternity leave, WABE issued instructions that staff were not allowed to wear visible signs of religious belief including a “Christian cross, Muslim headscarf or Jewish kippah”.

When IX refused to step wearing her hijab, she was suspended. She challenged the decision in the Hamburg labour court. That court wanted to find in her favour but believed it could not do so because of previous rulings from the EU court. It therefore asked the EU court whether WABE’s discrimination could be justified.

Müller Handels

The second case involves Müller Handels which, among many other things, runs a chain of pharmacies in Germany. A woman known as MJ had worked in one since 2002 as a sales assistant. On her return from maternity leave in 2014, she wore a hijab. She was sacked. Müller Handels said that, since 2016, the wearing of conspicuous, large-scale political, philosophical or religious signs in its stores has been prohibited. The federal labour court adjourned MJ’s claim against Müller Handels and asked the EU court whether the company’s discrimination could be justified.

The Rantos opinion

Rantos began his opinion by referring to an EU directive dating from 2000 on equal treatment in employment and occupation. Its purpose was to ban discrimination in the workplace. That directive was subsequently transposed into German law. It prohibits both direct and indirect discrimination.

Because the WABE instructions applied to all staff who dealt direct with the public, said Rantos, they did not provide for “less favourable treatment of a worker that is directly and specifically linked to his or her religion or beliefs”. So there was no direct discrimination.

Was there indirect discrimination on grounds of religion or belief? That depended on whether the ban on visible religious signs had a legitimate aim. Rantos thought there could be. In his opinion,

a difference of treatment indirectly based on religion or belief, for the purposes of that provision, can be justified by the employer’s intention to pursue a policy of political, philosophical and religious neutrality in the workplace in order to take account of the wishes of its customers.

The question in Müller Handels was whether the company could ban “only the wearing of conspicuous, large-scale signs of political, philosophical or religious beliefs in the workplace”.

Rantos cited a case brought against British Airways by Nadia Eweida, a Coptic Christian who worked as a member of the airline’s check-in staff. In 2006, the airline suspended her for wearing a small cross on her necklace while at work. British Airways reversed its policy a few months later but in 2013 the European Court of Human Rights found that Eweida had suffered discrimination.

In the light of that ruling, Rantos decided that small-scale symbols must be acceptable under EU law. However, he concluded,

an internal rule of a private undertaking which prohibits, in the context of a policy of neutrality, only the wearing of conspicuous, large-scale signs of political, philosophical or religious beliefs in the workplace can be justified for the purposes of [the equal treatment directive]. Such a prohibition must be implemented in a consistent and systematic manner, which is for the referring court to ascertain.

The Sharpston opinion

Sharpston begins her 75-page shadow opinion by reminding the German judges of events that happened in their country in living memory:

The rise to power of the National Socialist Party in Germany during the 1930s led in very short order to overt and horrifying discrimination on grounds of race, religion and ethnic origin. That poison was allowed to spread unchecked. It resulted in the Second World War and the accompanying catalogue of genocide and crimes against humanity. The focussed and deliberate attempt to eradicate all Jews from territories under Nazi control — the Shoah — was accompanied by other, equally deliberate moves to exterminate other despised racial groups and unwanted minorities (Roma, homosexuals, Communists, Sinti …).

Out of the devastation — the casual killing in the slave labour camps; the ashes of the industrial-style crematoria of the Konzentrationslager — came, thank heavens, the collective recognition that we Europeans had to ensure that such atrocities would never happen again. That is what gave birth to the “European project”. The language of Article 2 [of the Treaty on European Union], with its express references to common values of “respect for human dignity” and “respect for human rights, including the rights of persons belonging to minorities” and to “a society in which pluralism, non-discrimination, tolerance … prevail”, is there to entrench our collective memory of what went wrong and why we must do better than that in our shared European future…

Sharpston’s next paragraph may be seen as particularly pointed, given that she was sacked because — as well as being a Luxembourg citizen — she holds a UK passport.

Against that background, [the equal treatment directive] seeks to ensure that everyone can access the employment market under conditions that respect their identity and their dignity. Access to jobs matters. So does protection from discrimination within employment. Work is of fundamental importance, both economically and psychologically, for us as individuals and for our society as a whole. Those who are excluded from the employment market or ejected from a job that they hold — particularly if that exclusion takes place for a reason that is central to their identity and that they cannot or should not be asked to surrender — easily become discouraged, alienated and embittered. Emotional damage risks being added to financial hardship and economic vulnerability. To the altruistic reasons for combating discrimination can be added some hard-nosed practical considerations. Creating pockets of deprivation and delineating racial or cultural groups that can readily self-identify as victims easily sets the scene for social unrest and worse.

Sharpston also makes a very practical observation. The hijab does not cover any of the wearer’s face — unlike the masks we must wear during the Covid pandemic. “It is therefore not really plausible to advance the proposition that a hijab is some kind of impediment to inter-personal communications in Western society.”

The question of discrimination must be considered in the light of the EU charter of fundamental rights, she explains. Article 10 of the charter protects freedom of thought, conscience and religion while article 16 recognises the freedom to conduct a business.

Sharpston said she would treat the hijab and kippah as “mandated religious apparel” — items required of people with a particular level of observance by their religion. She went on:

It seems to me difficult to avoid the conclusion that, in relation to those members of non-Christian religions that regard themselves as obliged to wear mandated religious apparel, rules such as those put in place by both employers in these two references discriminate against such employees on a prohibited ground (religion).

Sharpston then drew a distinction between practising one’s religion and proselytising — encouraging others to convert. Even in schools, it must be possible to do one without the other.

After an exhaustive review of the case law in both the human rights court and the EU court, Sharpston offered the following reflections:

• The equal treatment directive was “intended to create a coherent, functioning and effective system to combat discrimination in employment — whether direct or indirect — on any of the prohibited grounds listed”.

• It follows that the twin concepts of direct discrimination, on the one hand, and indirect discrimination, on the other hand, should not be construed for the purposes of that directive in a way that permits a kind of “black hole” to emerge between direct discrimination and indirect discrimination into which a number of questionable practices fall.

• Indirect discrimination occurs when an apparently neutral criterion is applied to everyone, but the result is a disparate adverse impact upon a particular sub-group of those to whom that criterion is applied. Because the criterion is, indeed, neutral rather than overtly discriminatory, that may perhaps generate a kind of unspoken assumption that in applying that neutral criterion, the employer’s intentions were straightforward and honourable. It is very easy to carry that unspoken assumption across to the subsequent analysis of the justification advanced and to scrutinise the latter with a correspondingly friendly eye.

• In reality, however, such an assumption risks being flawed, at least in some cases. Whilst the application of a neutral criterion may sometimes, indeed, result in inadvertent indirect discrimination, it is also perfectly possible to conceive of circumstances in which the employer does in fact intend to discriminate on a prohibited ground, but is sufficiently intelligent or well advised to arrange matters so that the measures that he takes fall to be classified as indirect, rather than direct, discrimination.

• If we are to ensure that the way in which indirect discrimination is assessed does not allow suspect practices to get through, it follows that close and rigorous scrutiny must be applied to all three aspects of the test for justification.

Sharpston discussed the implications of these principles before providing her own responses to the questions raised by the German judges. She began with the Müller Handels case, as that had been referred to Luxembourg by a more senior court:

By its first question, the national court essentially asks whether, in order to be valid, a ban on wearing signs must prohibit all forms of signs and not merely prominent or large ones…

[The equal treatment directive] is to be interpreted as requiring a national court, when evaluating an internal rule of a private undertaking that prohibits the wearing of visible signs of religious, political or other ideological beliefs, to subject any justification advanced by the undertaking for such a ban to strict scrutiny, irrespective of whether that rule bans the wearing of any visible such signs (a total ban) or only such signs as are prominent and large-scale (a partial ban)…

The burden of proof for showing that such a ban does not breach the principle of equal treatment lies with the respondent employer. In conducting that evaluation, the national court should bear in mind the possibility that a partial ban may lead to additional discrimination as between adherents to different religious beliefs and/or that it may give rise to uncertainty as to its precise scope and effect. 

The second question referred is in two parts. In part (a), the national court enquires whether rights arising under article 10 of the [EU] charter and article 9 of the [human rights] convention may be taken into account in an analysis of restrictions under [the directive]. In part (b), it asks whether national rules of constitutional status may represent more favourable measures for the purposes of [the directive]…

The answer to part (a) … should be that, when examining any alleged violation of the principle of equal treatment set out in [the directive] in respect of religion as a prohibited ground of discrimination… [the directive] requires the rights derived from article 10 of the charter and article 9 of the convention to be taken into account…

I consider that part (b) of the second question should be answered to the effect that, since [the directive] does not effect a complete harmonisation of the relevant rules of EU law, national rules of constitutional status that protect freedom of religion may be taken into account as more favourable provisions within the meaning of [the directive], provided that  the level of protection provided for by the charter, as interpreted by the [EU] court, and the primacy, unity and effectiveness of European Union law are not thereby compromised. 

Turning to the WABE case, Sharpston reformulated the questions asked in the following way:

1. Does a unilateral instruction from an employer prohibiting the wearing of any visible sign of political, ideological or religious beliefs constitute discrimination on the ground of religion… against employees who consider that they are obliged to wear mandated religious apparel, such that, in accordance with [the directive], the burden of proof thereupon shifts to the employer to advance objective justification or other lawful excuse for such an instruction?

2. Can an employer’s desire to pursue a policy of political, ideological and religious neutrality in order to accommodate the perceived wishes of his customers render such a unilateral instruction either objectively justifiable … or capable of characterisation as a genuine and determining occupational requirement under [the directive]?

3. [Does the directive] and/or the freedom to conduct a business laid down in article 16 of the charter preclude a national court from having regard to a provision of national constitutional law which affords enhanced protection to the fundamental right of freedom of religion?

And these were her answers:

1. Yes.

2. An employer’s desire to pursue a policy of political, ideological and religious neutrality in order to accommodate the perceived wishes of his customers cannot render such a unilateral instruction either objectively justifiable … or capable of characterisation as a genuine and determining occupational requirement…

3. Neither [the directive] nor the freedom to conduct a business… preclude a national court from having regard to a provision of national constitutional law which affords enhanced protection to the fundamental right of freedom of religion, provided that the level of protection provided for by the [EU] charter, as interpreted by the [EU]court and the primacy, unity and effectiveness of European Union law are not thereby compromised.

What kind of EU?

Why did Sharpston publish her views of these cases? No doubt there are some in the court who will see this as an attempt to show up the inadequacies of Rantos’s opinion. But that is not the answer Sharpston herself gave in a brief introduction published alongside her analysis.

By the time she and her team left their posts on 10 September 2020, she wrote, the EU taxpayer had already funded a significant amount of initial “team Sharpston” work and thought on the problems highlighted by these two references:

More fundamentally, the issues that they raise about the wearing of the Islamic headscarf — the “hijab” — are ones that go to the heart of the question, “what kind of a European Union should we be building for the future?”

I have therefore since done what was required to complete this “shadow opinion”. I offer it as a public contribution to the debate that needs to take place, both inside and outside the court, on an important and sensitive topic.

Conclusion

In the UK, we have grown used to seeing women in the public realm covering their hair. Two senior English judges — one in the High Court and the other in the Court of Appeal — wear the Sikh turban, or dastar. The Rantos opinion manages to be simultaneously unprincipled, offensive and impracticable. If the court decides to ban mandated religious apparel in the workplace because the customers might object, Sharpston would right to ask what sort of Europe her former judicial colleagues are trying to create.

Update 16 July 2021

The EU court delivered its ruling on 15 July. It rejected the Rantos argument, ridiculed above, that judges should distinguish between small-scale and larger religious symbols:

Article 2(2)(b)(i) of Directive 2000/78 must be interpreted as meaning that indirect discrimination on the grounds of religion or belief resulting from an internal rule of an undertaking prohibiting, at the workplace, the wearing of visible signs of political, philosophical or religious beliefs with the aim of ensuring a policy of neutrality within that undertaking can be justified only if that prohibition covers all visible forms of expression of political, philosophical or religious beliefs. A prohibition which is limited to the wearing of conspicuous, large-sized signs of political, philosophical or religious beliefs is liable to constitute direct discrimination on the grounds of religion or belief, which cannot in any event be justified on the basis of that provision.

However, it allowed employers to justify a hijab ban in limited circumstances:

Article 2(2)(b) of Directive 2000/78 must be interpreted as meaning that a difference of treatment indirectly based on religion or belief, arising from an internal rule of an undertaking prohibiting workers from wearing any visible sign of political, philosophical or religious beliefs in the workplace, may be justified by the employer’s desire to pursue a policy of political, philosophical and religious neutrality with regard to its customers or users, provided, first, that that policy meets a genuine need on the part of that employer, which it is for that employer to demonstrate, taking into consideration, inter alia, the legitimate wishes of those customers or users and the adverse consequences that that employer would suffer in the absence of that policy, given the nature of its activities and the context in which they are carried out; secondly, that that difference of treatment is appropriate for the purpose of ensuring that the employer’s policy of neutrality is properly applied, which entails that that policy is pursued in a consistent and systematic manner; and, thirdly, that the prohibition in question is limited to what is strictly necessary having regard to the actual scale and severity of the adverse consequences that the employer is seeking to avoid by adopting that prohibition.

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