Márton SULYOK: Size Does Matter (?!)
Some European Debates on the Use of Religious Symbols in the Workplace
On 25 February 2021, Athanasios Rantos AG (CJEU) has issued an opinion in two German PRPs (preliminary ruling procedures) on whether an employer’s internal ‘neutrality policy’ can at all prohibit the wearing of large religious symbols, while being more lenient regarding smaller, more modest ones. These neutrality rules obviously encompass all forms of clothing and ‘office wear’ not only specifically identifiable religious symbols as such regulations normally extend to all forms of political, religious and ‘world views’. (Please note: The opinion is not yet available in English – below, I’ll limit myself to the Hungarian text and its translations)
Constitutional scholarship, free speech advocates and public opinion all approach this topic with care from many aspects, especially with regard to the wearing of such symbols in various public spaces, from universities and educational institutions to public administration offices. Thus, stances regarding “religious dress” (broadly speaking) divide Europe and a multitude of national practices and constitutional, legal rules have become public knowledge due to the jurisprudence of the European Court of Human Rights (Court, ECtHR). One among these decisions has been the famous landmark of Leyla Sahin v. Turkey (2005), wherein the Court has made the following statement (para. 35), evaluating the relationship of secularism and freedom of religion on the basis of identity. They argued that “[t]hose in favour of the headscarf see wearing it as a duty and/or a form of expression linked to religious identity.” In other words there is a right to the respect of religious symbols that is inherent to freedom of religion on an identitarian basis. The fact that the Court alludes to a “form of expression” linked to this identity transfers the discourse into the realm of free speech, which further complicates how we might interpret rules that limit wearing religious dress or similar symbols. (With these in mind, Erica Howard, a legal expert of the European Commission has looked at these issues in her 2017 study in a narrower European context, tailored to the EU, also looking at national practices.)
The two German cases (C-341/19 and C-804/18) providing the grounds for the AG opinion mentioned above, now touch upon similar issues under German law in light of EU law regarding the wearing of an Islamic headscarf under the neutrality rules of two companies (a drugstore operator and an association in charge of maintaining kindergartens). The EU law in question, regarding which the preliminary questions of the two German labor courts were raised is the 2007/78 EU (nominally EC) Directive regarding establishing a general framework for equal treatment in employment and occupation.
According to the AG’s opinion, relevant restrictions in employers’ internal regulations in this regard to not realize discrimination if related to any manifestations of employees political, religious or other world views. (This is based on previous cases such as Achbita or Bougnaoui.) However, this argument should be brought further in relation to the visible wearing of any symbols pertinent to the above, in the instant case, religious symbols. After visibility has been dealt with in CJEU practice in the famous G4S case, the focus visibly shifted to their size and ‘conspicuousness’. The AG opinion held that in the instant cases restrictions affected the ‘office wear’ in terms of any signs of religious views visible to third persons, clearly referring to this rule as part of maintaining client-relations. (para 51-52.) At this point, the opinion underlined that the current CJEU jurisprudence does not directly entail in cases similar to the one at hand that discrimination could not be established regarding rules banning the wear of Islamic headscarves. (para. 56.)
In the second part of the opinion, paras. 71-76 contain some key arguments that need to be emphasized. It was argued by the AG that the CJEU did not yet decide on the issue of rules banning the wearing of large symbols of political, religious or other world views, and that this logically means that the following issue needs to be examined: whether small-sized symbols can in fact be worn in the workplace in a visible manner. The AG refers here to Eweida and others, a case decided in 2013 by the ECtHR, where modesty did suit the context of declaring a violation of Article 9 ECHR. In Eweida, the respondent UK was found violating the Convention for sanctioning modest religious symbols otherwise unsuitable to tarnish the professional image of the wearers. Consequently, the following argument is made: employers’ neutrality policies – in the context of their client relations – are not inconsistent with their employees wearing small, modest religious symbols that are not detectable at first sight. Here it is argued that size does matter, as the AG is of the opinion that small symbols cannot insult those clients of the company that do not share in the religion or views of the employees wearing them.
Cutting back to visibility and the relevant ban, the AG states that if visible signs can be lawfully banned under G4S, then based on freedom to conduct a business (under the Charter), the employers are free to explicitly and exclusively ban the wearing of big symbols. So size does matter (?), but the only real question is who is to say what is big or small. The AG is of the opinion that it shall not be the CJEU, such assessment is (duly) deferred to national courts based on the totality of circumstances, also accounting for the environment in which the symbols are worn. One thing is for sure, though: the size of the Islamic headscarf is not small.
What also is not small is the number of contradictions in the opinion, considers Martijn van den Brink’s in his latest post on Verfassungsblog. “The only positive aspect” of the opinion, he writes, deals with specifying the relationship of national constitutional and European rules protecting freedom of religion, and in this context the opinion looks at the issue whether national constitutional law rules protecting the freedom of religion can be interpreted as “provisions which are more favourable to the protection of the principle of equal treatment than those laid down in this Directive” in light of Article 8 of the Directive. The AG’s conclusions that they cannot. In this context, it was also raised whether internal rules of the employer in C-341/19 are superseded by the rules of the national constitution, which might have priority over neutrality policies based on the freedom to conduct business in reliance on the standards set by Sahin (where wearing the headscarf was considered by the employee as a religious duty).
Regarding C-804/18, the AG’s opinion sets forth that the German Federal Constitutional Court (GFCC) emphasized that the freedom to conduct a business under the Charter can no longer be assigned priority over freedom of religion in all cases, specifically where neutrality is imposed by the employer in client interactions, but the lack of such neutrality would not lead to any economic disadvantage. Based thereon, the GFCC emphasized that situations created by employers’ intent to abide client requests resulting in services being rendered by an employee not wearing an Islamic headscarf does not fall under the “genuine and determining characteristic” rule of Article 4 of the Directive. In the AG’s opinion, it is not contrary to the Directive if a national court applies the provisions of the national constitution to examine internal regulations of a private company prohibiting the wearing of symbols referring to political, religious or other world views, but any occurrence of discrimination should be duly assessed by the national courts as well.
Regardless of what arguments the CJEU’s judgment will finally rely on (given that the AG’s opinion is non-binding on the Court) AG Rantos’ opinion surely adds another layer to the European debates on wearing or displaying religious symbols and the right to respect these symbols as “forms of expression” tied to one’s identity under the afore-mentioned Sahin judgment of the ECtHR.
If we shift the identity-focus of the arguments from the individual to the state, France comes to mind. The mystery of Laity (laïcité) – often misunderstood abroad – is an inherent element of French constitutional identity – i.e. the constitutional principle of secularism – and defines many aspects of the operation of the State. Debates resulting from the above questions have started much longer ago here than elsewhere in Europe. Legal debates in concrete cases have surfaced in terms of crucifixes in classrooms, or modest religious symbols hanging in the necks of parent chaperones on a class outing, but the Islamic headscarf (foulard) – just as in the above German cases – and the full-body veil (voile intégral) were all affected in court battles and ensuing legislation. Besides lawmakers, the Constitutional Council and the Council of State have both said – sometimes with different points of view – their parts as early as 1989 in the infamous case of the “Foulards de Creil”, or then in 2010 regarding the constitutionality of a ban on wearing full-body veils in public spaces for public safety reasons.
Most recently, the 2020 projet loi (draft bill) on reinforcing the principles of the Republic contains several provisions regarding freedom of religion that expressly originate in the 1905 law that codified the separation of Church and State, thus introducing Laity into French constitutional tradition but in its original form containing no limitations on the “porte des signes”, the wearing of (religious) symbols. Prohibition only surfaced later on, in different but familiar contexts: at first, in education (cf. Sahin). 1882 was the year when the law on a laicized education was born, until a 2004 law has prohibited the wearing of all “ostensibly manifest” (i.e. clearly visible) signs, logically leading to a more lenient approach toward more discreet, modest (small-sized?) signs. In relation to the workplace and employment, the 2020 draft bill, for example, outlines that in the course of providing public services, the principles of neutrality and laity need to be observed. In terms of private companies, if their employees engage in client relations, restrictions similar to the ones mentioned in the German cases can be applied, but – if a private company should provide a public service by law, it shall also observe rules regarding neutrality and laity, according to the draft bill. Obviously, the legislative debate of this draft bill is not over yet, nothing is set in stone, the Senate shall decide on it sometime in May this year, but until then, scholars are left to work with this concept.
Based on the events of the past weeks, we can conclude that the size of the debate is expected to grow, and it does matter which previously resolved issues will gain new interpretations in light of new approaches. Based on the above, it is not at all evident that the wearing of religious symbols is a one way street, a matter of principle manifesting itself in forms of expression tied to one’s identity or rather – based on the German cases described above – “size does matter” and in some contexts there is no “one-size-fits-all” solution.
Márton SULYOK, lawyer (PhD in law and political sciences), legal translator. As a graduate of the University of Szeged, he has been working for his alma mater in different academic and management positions since 2007. He is currently a Senior Lecturer in Constitutional Law and Human Rights at the Institute of Public Law of the Faculty of Law and Political Sciences (Szeged), and the head of the Public Law Center at MCC (Mathias Corvinus Collegium) in Budapest. He previously worked for the Ministry of Justice in Budapest and has been an Alternate Member on the Management Board of the Fundamental Rights Agency of the European Union (2015-2020). E-mail: firstname.lastname@example.org