After the controversial opinion given by Advocate-General Kokott in Achbita v G4S concerning an employer’s ban on staff wearing religious or political symbols (which AG Kokott considered was lawful) Advocate-General Sharpston has just delivered a diametrically opposed opinion in Bougnaoui v Micropole.
The stage is now set for the ECJ to deliver its first rulings on religious discrimination. The cases highlight a fundamental debate about religious discrimination: what does the law actually protect? Merely holding a belief, or acting on that belief? In simplistic terms, AG Kokott says that the law primarily protects the holding of a belief, not its manifestation (taking her lead from some of the ECtHR case law), while AG Sharpston takes the view that belief and the outward expression of it are not readily severable and are both protected. This fundamental disagreement informs their approach to various issues in the cases and it seems inevitable that the ECJ will need to reach a view on the scope of the protection.
Direct or indirect discrimination?
The first key battleground is whether the employers’ actions constituted direct or indirect discrimination.
AG Kokott’s view was that the employer’s ban on religious and political symbols was not direct discrimination; the only difference of treatment it created was between employees who wished to give active expression to a belief and those who did not wish to do so. She emphasised the element of “choice”, stating that while the ECJ treated measures as directly discriminatory which were “inseparably linked to the relevant reason for the difference of treatment”, those cases concerned “immutable physical features or personal characteristics – such as gender, age or sexual orientation“, not behaviour based on subjective decisions or beliefs.
AG Sharpston rejects this distinction between religious belief and the active expression of that belief (although she considered that workplace proselytising can be prohibited). Ms Bougnaoui had been sacked because she refused to remove her headscarf when visiting a client: because an individual who chose not to manifest their belief in such a way would not have been fired, this was direct discrimination.
Kokott’s analysis on direct versus indirect discrimination may feel more familiar to UK lawyers from domestic cases on dress codes. But one can surely distinguish between a genuinely neutral ban on jewellery or hazardous objects and a ban explicitly directed at symbols of belief or affiliation. Sharpston’s view was that the latter could only be genuinely neutral if it prohibited all symbols of affiliation. Her approach is logical and still leaves scope for the former to be treated as indirect discrimination. This seems a sensible line for the ECJ to take. Sharpston’s (perhaps mischievous) comment about banning Oxbridge college ties emphasises that judgements about what constitutes “corporate neutrality” are inherently value-laden. Discrimination lawyers should, I think, be wary of “neutrality” being used as a cloak for religious intolerance.
Kokott’s emphasis on the role of “choice” is very troubling. I like to think very few people would believe that a gay employee fired after showing colleagues pictures of himself at Pride should lose protection because he could have chosen to be “discreet”; the point of discrimination law is that people should not have to hide fundamental elements of their identity to keep their job.
Scope of “genuine occupational requirement” and justification
Sharpston interpreted the “genuine and determining occupational requirement” (GDOR) derogation strictly; it could only apply where a particular characteristic (for example, not wearing a headscarf) was essential for performing the job. In the religious discrimination context, she did not envisage that anything other than health and safety considerations could meet this threshold. She also gave short shrift to Micropole’s argument that a customer expressing discomfort with the employee wearing a headscarf enabled it to rely on this derogation; financial loss cannot justify discrimination and the freedom to conduct a business is not unlimited.
In relation to justification for indirect discrimination, she emphasised the employer’s duty to try to find a solution, such as an approved uniform headscarf or the wearing of discreet symbols, but that in the last resort a business’s commercial interests should give way to the right of the employee to manifest their religious convictions.
Kokott’s reasoning on the GDOR point seems circular: G4S had decided on a policy of total neutrality (although Sharpston would question how neutral it actually was), compliance with this was therefore a GDOR, the policy did not go beyond the business’s permitted discretion and because the policy required total neutrality, no less discriminatory alternative would achieve the objective. She then took a similar approach to justification for indirect discrimination. The result was that the policy itself was barely scrutinised. Kokott states that G4S serves a wide range of customers and needs to avoid giving the impression that it endorsed the beliefs of employees. But the idea that a customer would presume G4S to endorse the religious views of its staff seems completely fanciful, while any customer who believed a headscarf-wearing employee would not serve them fairly and without discrimination would be expressing the sort of gross prejudice to which businesses should not pander (as Sharpston emphasised).
Sharpston’s analysis of the GDOR point is more persuasive than Kokott’s, as is her overall approach to justification, and I would expect the ECJ largely to follow her reasoning. However, one suspects the ECJ will be unwilling to go as far as to say that religious expression always trumps business interests; as well as intruding on the task of the national court, that would arguably elevate the protection of religious beliefs above other protected characteristics. Whichever way the judgment goes, it is sure to be a fascinating read.
I agree with almost your entire post except for your view that AG Kokott’s emphasis on the role of “choice” is very troubling. I respectfully suggest that you may be missing the point when you apply this reasoning to a gay employee “choosing” not to be “discreet”. AG Kokott is not referring to the choice involved in conduct relating to, or manifestation of, a protected characteristic. She is referring to the fact that a person’s religious beliefs, or lack of them, is a choice and, of all the protected characteristics, it is the only one which is a choice, as all the others are immutable. There’s no doubt that a person’s right to hold religious beliefs and to manifest them, and not to be discriminated against for doing so, is a Fundamental Right under EU law and that’s it’s right and proper that it is. However, it’s logical and reasonable to consider the fact the fact that this characteristic is based on a voluntary choice when deciding on issues of proportionality and conflicts of interest.