Choose One: Gainful Employment or Religious Obedience – An Analysis of Samira Achbita v. G4S
Freedom of religious expression is a fundamental human right that pervades both international and domestic law, yet this right is not absolute. This holds particularly true when one’s religious mandates conflict with the rights of others. This Comment explores this tension in the context of the recent ruling by the European Court of Justice in Samira Achbita v. G4S. The court ruled that an employer can establish a general policy that forbids the wearing of religious symbols and attire in the workplace because it does not constitute direct discrimination. This ruling suggests that a private employer’s right to conduct business according to his or her wishes is equally important, if not more so, to the fundamental right to manifest one’s religious beliefs. Although such policies must be facially neutral to avoid the moniker of discrimination, followers of religions with clothing mandates, such as Muslim women, are affected to a greater degree than followers of religions without such mandates, atheists, and secular individuals. This Comment considers this disparity by analyzing both European Union law and international law generally, suggesting a potential conflict between the two. International law provides broad and rigid protections for the freedom of religious expression, whereas E.U. law has developed a more granular and specific approach. This latter approach may not sufficiently protect freedom of religion as envisioned under international law.
Perhaps one of the most salient characteristics of a free society is the ability of an individual to develop or adopt any set of beliefs; some of which transform into pure convictions—creeds by which people live and manifest their identities. Yet, another hallmark of a free society, especially one which also operates under a free market economy, is the individual liberty to operate a commercial business according to one’s desires. As aptly noted by Aristotle in Book II of his Politics: “if different people attend to different things, no mutual accusations result, and they will together contribute more, since each person keeps his mind on his own proper concerns.”1
Aristotle, Aristotle: Selections 464 (Terence Irwin & Gail Fine trans., 1995).
Yet no rational individual could assume that either of these attributes of a free society should exist without limit. True, an individual can believe virtually anything, but surely society would not allow individuals to manifest beliefs via conduct that impinges upon the fundamental rights of other citizens. By that same token, no society will last long that allows business owners to set openly harmful policies with impunity. Removing a sense of benevolence from the equation, a business owner is freest when the company operates precisely to the owner’s specifications without making concessions for the rights of subordinates. This, however, is not the efficient outcome. As a result, when these two fundamental rights of free citizens come into conflict, the critical inquiry is which right gives way to the other and does the answer to that question change depending on both the circumstances and the degree of suppression that results from the compromise?
This Comment seeks to explore the balance between the right to follow the mandates of one’s religion—the pinnacle of individualized belief—and the right of an employer to control the conduct of their employees in the workplace. The resulting implications will be explored in the context of the recent ruling by the European Court of Justice (ECJ) in Samira Achbita v. G4S Secure Solutions NV,2
Judgment of 14 March 2017, Samira Achbita v. G4S Secure Solutions NV, C‑157/15, EU:C:2017:203.
Opinion of Advocate General Kokott delivered on 31 May 2016, Samira Achbita v. G4S Secure Solutions NV, C‑157/15, EU:C:2016:382.
Achbita v. G4S, supra note 2.
G4S Secure Solutions NV (G4S) is a publicly traded company that provides security, guard, and reception services to various customers from the public and private sectors.5
Achbita v. G4S, Opinion of the AG, supra note 3, at ¶ 16.
Amnesty International, Wearing the Headscarf in the Workplace—Observations on Discrimination Based on Religion in the Achbita and Bougnaoui Cases (2016), http://perma.cc/W7C8-3UK9.
Achbita v. G4S, Opinion of the AG, supra note 3, at ¶ 20 (summarizing the Belgian appellate court’s holding).
Council Directive 2000/78 of 27 November 2000, Establishing a General Framework for Equal Treatment in Employment and Occupation, 2000 O.J. (L 303) 18 (EC).
Achbita v. G4S, Opinion of the AG, supra note 3, at ¶ 22 (detailing the Court of Cassation’s referred legal question).
On March 14, 2017, the ECJ issued its response ruling in Achbita v. G4S and determined that there is no direct discrimination present in G4S’s code of conduct since the ban “does not introduce a difference of treatment that is directly based on religion or belief.”10
Achbita v. G4S, supra note 2, at ¶ 32.
Id. at ¶ 5.
Id. at ¶ 44.
The ECJ’s legal holding and the AG’s analysis of direct and indirect discrimination under Directive 2000/78 serve as the focus of this Comment. Directive 2000/78 is a current body of E.U. law that traces its roots and inherent authority to Article 13 of the Treaty Establishing the European Community (E.C. Treaty).13
Consolidated Version of the Treaty Establishing the European Community, Dec. 29, 2006, 2006 O.J. (C 321) 37 [hereinafter E.C. Treaty].
Id. at art. 1 (“By this Treaty, the High Contracting Parties establish among themselves a European Union, hereinafter called ‘the Union’ . . . The Union shall be founded on the European Communities, supplemented by the policies and forms of cooperation established by this Treaty. Its task shall be to organise, in a manner demonstrating consistency and solidarity, relations between the Member States and between their peoples.”).
G.A. Res. 217 III (A), Universal Declaration of Human Rights (Dec. 10, 1948).
G.A. Res. 2200A (XXI), International Covenant on Civil and Political Rights, art. 18 (Dec. 16, 1966).
G.A. Res. 36/55, Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (Nov. 25, 1981).
Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 221.
As a point of clarity, the E.U. currently has 28 member states (see European Union, Citizens Information, http://perma.cc/CTE8-EPPE). Thus, the E.C. Treaty applies only to these 28 member states. The European Convention on Human Rights, on the other hand, applies to the entire Council of Europe, which contains a total of 47 countries, 28 of which are also members of the E.U. (see Member States of the European Union and the Council of Europe, Europe in Strasbourg, http://perma.cc/TL8M-H8AR). Broader still, the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights are products of the United Nations and apply to all U.N. members. There are presently 193 Member States of the U.N. (see Growth in United Nations Membership, United Nations, http://perma.cc/YNE2-2LEX).
On the other hand, perhaps the ECJ is indeed properly interpreting E.U. law, yet E.U. law itself has become inconsistent with the established protections of religious freedom firmly embedded within international law. For example, whereas Directive 2000/78 distinguishes between “direct” and “indirect” discrimination and provides for legal exceptions in the latter,20
See Council Directive 2000/78, supra note 8, at art. 2(2)(a)–(b).
Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, supra note 17.
Id. at art. 2(1).
For the purposes of the present Declaration, the expression “intolerance and discrimination based on religion or belief” means any distinction, exclusion, restriction or preference based on religion or belief and having as its purpose or as its effect nullification or impairment of the recognition, enjoyment or exercise of human rights and fundamental freedoms on an equal basis.23
23Id. at art. 2(2) (emphasis added).
Note how the language of the DEAFID implies an outright ban on discrimination regardless of whether the policy at issue has “as its purpose,” what Directive 2000/78 would categorize as “direct discrimination,”24
Council Directive 2000/78, supra note 8, at art. 2(2)(a).
Id. at art. 2(2)(b).
Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, supra note 17, at art. 4.
Id.
This Comment seeks to analyze this potential discrepancy by first providing a detailed discussion of the ECJ’s ruling and the AG’s legal analysis in Achbita v. G4S.28
Achbita v. G4S, supra note 2; Achbita v. G4S, Opinion of the AG, supra note 3.
The primary argument is that E.U. religious discrimination law is currently ineffective in protecting the right of religious expression for followers of certain religions. Religions with certain idiosyncratic practices do not receive sufficient legal protection from religious discrimination. This is seen in the context of the ECJ upholding a facially neutral employment policy that forces a devout Muslim woman to violate a strict mandate of her religion if she wishes to retain her employment.29
Achbita v. G4S, supra note 2.
As a point of clarification, the ECJ’s Judgment of the Court contains a recitation of the relevant law, a very brief analysis, and then states its legal ruling. This constitutes the official legal determination by the court. By contrast, the Opinion of the AG, although not itself the official holding of the ECJ, provides a detailed and thorough legal analysis of the issues raised. The Opinion of the AG was directly relied on by the ECJ in reaching its ruling, and the ECJ adopted virtually every legal conclusion reached by the AG. As such, this Comment often focuses on the legal analysis by the AG, especially when the ECJ’s legal reasoning is unclear or underdeveloped as presented in the Judgment of the Court. Any disparities between the Opinion of the AG and the ECJ’s official Judgment of the Court, or any position expounded by the AG that was not officially adopted by the ECJ, will be duly noted.
Samira Achbita was hired as a receptionist at G4S Secure Solutions NV in February of 2003.31
Achbita v. G4S, Opinion of the AG, supra note 3, at ¶ 16.
Achbita v. G4S, supra note 2, at ¶ 12.
Achbita v. G4S, Opinion of the AG, supra note 3, at ¶ 18.
Id.
Claire Best, Muslim Headscarf Ban Justified by Employer's Dress Code Policy, Lexology (June 10, 2016), ¶ 4, http://perma.cc/5QHR-RY3U.
Once Ms. Achbita’s case reached the Belgium Court of Cassation, on March 9, 2015, the court stayed proceedings and sought a preliminary ruling by the ECJ on whether Article 2(2)(a) of Council Directive 2000/78 of 27 November 2000 should “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.”36
Achbita v. G4S, supra note 22, at ¶ 21.
Id. at ¶ 24.
Council Directive 2000/78, supra note 8, at art. 2(2)(a).
Achbita v. G4S, supra note 2, at ¶ 31–32.
Achbita v. G4S, Opinion of the AG, supra note 3, at ¶ 48.
Id.
However, after determining that G4S’s policy did not rise to the level of direct discrimination, the ECJ proceeded to consider whether the company policy constituted indirect discrimination within the meaning of Directive 2000/78.42
Achbita v. G4S, supra note 2, at ¶ 34.
Council Directive 2000/78, supra note 8, at art. 2(2)(b).
Achbita v. G4S, supra note 2, at ¶ 35.
Council Directive 2000/78, supra note 8, at art. 2(2)(b)(i).
Achbita v. G4S, supra note 2, at ¶ 35.
Unfortunately, the concepts of “legitimate aim” and “appropriate and necessary” are not explicitly defined under Directive 2000/78.47
Council Directive 2000/78, supra note 8.
Achbita v. G4S, supra note 2, at ¶ 44.
Council Directive 2000/78, supra note 8, at art. 4(1).
Id.
Achbita v. G4S, Opinion of the AG, supra note 3, at ¶ 76.
Achbita v. G4S, supra note 2, at ¶ 37.
The AG then turned her attention to clarifying what type of underlying intention or purpose qualifies as a “legitimate aim.” In a rather unsatisfying way, she attempts to define the bounds of a “legitimate aim” by appealing to the norms and fundamental values of the E.U.53
Achbita v. G4S, Opinion of the AG, supra note 3, at ¶ 87.
Id. at ¶ 94.
Achbita v. G4S, supra note 2, at ¶ 38.
However, this conclusion is in direct tension with the AG’s comments just a few sentences earlier in the opinion where she explains that it would “obviously not” constitute a legitimate aim for a company policy that accedes to customers’ demands to be served only by employees of a particular religion.56
Achbita v. G4S, Opinion of the AG, supra note 3, at ¶ 91.
Id.
Ultimately, the AG proposed a proportionality test that analyzed whether the means to achieve a given legitimate aim are appropriate and necessary. The AG set a rather low bar for what amounts to an “appropriate” measure, essentially asking whether the means result in, or seek to achieve, the desired ends.58
Id. at ¶ 103.
Id. at ¶ 104.
Id. at ¶ 107.
Council Directive 2000/78, supra note 8, at art. 4(1).
Id. at art. 2(2)(b)(i).
Yet the AG then inserted an additional factor into the proportionality test that the court labeled “proportionality sensu stricto,”63
See sensu stricto, Merriam-Webster Dictionary (2018), http://perma.cc/DL7E-52PV(defined as “in a narrow or strict sense”).
Achbita v. G4S, Opinion of the AG, supra note 3, at ¶ 112.
Id. at ¶ 117–22.
The AG also briefly mentioned that the national identity of the E.U. Member State should be considered in the proportionality calculus. She asserted that in Member States where secularism has constitutional status and therefore plays an instrumental role in social cohesion, the wearing of visible religious symbols may legitimately be subject to stricter restrictions than in other Member States that do not carry such sociopolitical positions.66
Id. at ¶ 125.
Unfortunately, the ECJ said little concerning weighing the interests of the employer and employee in this context, and it is unclear to what extent it adopted the AG’s “proportionality” regime. In its official ruling the ECJ simply notes that: “the means of achieving [a legitimate] aim [must be] appropriate and necessary.”67
Achbita v. G4S, supra note 2, at ¶ 44.
Id. at ¶ 40.
Id. at ¶ 42 (emphasis added).
Id.
Id. at ¶ 43.
Id.
In the end, the ECJ did not arrive at a firm conclusion as to whether G4S’s employee policy banning the wearing of religious symbols in the workplace fails the test for indirect discrimination. Even the AG provided merely a soft conclusion in her opinion, stating: “there is much to support the argument that a ban such as that at issue here does not unduly prejudice the legitimate interests of the employees concerned and must therefore be regarded as proportionate.”73
Achbita v. G4S, Opinion of the AG, supra note 3, at ¶ 126.
Achbita v. G4S, supra note 2, at ¶ 42.
Achbita v. G4S, Opinion of the AG, supra note 3, at ¶ 127.
Although a handful of both the AG’s and ECJ’s premises may be debatable, there is no denying that both provided a fair and reasoned interpretation of Directive 2000/78 and how it should apply. Yet the concern is whether such a detailed level of scrutiny in applying Directive 2000/78 comports with other established E.U. law, as well as broader international law concerning the freedom of religious expression. The next Section begins this analysis by taking a deeper look at Directive 2000/78, which finds its authority in Article 13 of the E.C. Treaty.
The original Treaty Establishing the European Community was signed into effect on March 25, 1957.76
E.C. Treaty, supra note 13.
Treaty of Amsterdam Amending the Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Acts, Oct. 2, 1997, 1997 O.J. (C 340) 1. The Treaty of Amsterdam had the additional effect of renumbering various articles of the amended EC Treaty. Thus, Article 13 is the equivalent of Article 6(a) post-renumbering.
Without prejudice to the other provisions of this Treaty and within the limits of the powers conferred by it upon the Community, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.78
78Id. at art. 13.
Based on the inherent authority provided by Article 13, in 2000 the E.U. adopted Directive 2000/78, the so-called “Framework Directive,” which has the purpose of establishing a general framework for equal treatment in employment and occupation.79
Council Directive 2000/78, supra note 8.
Susanne D. Burri & Filip Dorssemont, The Transposition of the Race Directive (2000/43) and the Framework Directive on Equal Treatment in Employment (2000/78) into Dutch and Belgian Law, 21 Int'l J. Comp. Lab. L. & Indus. Rel. 537, 538 (2005).
Article 1 establishes the general purpose of Directive 2000/78.81
Council Directive 2000/78, supra note 8, at art. 1.
Id.
Id. at art. 2(1).
Id. at art. 2(2)(a).
Id.
Although not raised by the court, one particular concern would include a scenario whereby an employer implements a facially neutral employee policy specifically to respond to the conduct or circumstances of a specific individual that the employer views as problematic. For example, an employer may institute a policy that bans the wearing of religious apparel in the workplace with the sole intention of discouraging Muslim women from working at or applying to the company. Despite the policy being facially neutral, the intent in enacting such a policy would be an implicit form of targeted discrimination. In fact, there is strong evidence in Ms. Achbita’s case that that is precisely what G4S aimed to do with its policy banning the wearing of religious apparel in the workplace. Ms. Achbita was fired on June 12, 2006. It wasn’t until the next day that G4S officially established its employee policy on the books.86
See Amnesty International, supra note 6.
The plain text of Article 2(2)(a) of Directive 2000/78 seems well-equipped to handle hypothetical situations such as those above. Although the court did not specifically address situations where a facially neutral policy was merely a pretext meant to covertly accomplish targeted discrimination, Article 2(2)(a)’s method of defining direct discrimination in terms of unequal treatment suggests a means for combatting such techniques. In theory, one could compile enough circumstantial evidence to show that a specific policy was created and enforced with the intent to adversely affect one particular person or group of persons. If one could show that a facially neutral employee policy was implemented solely to harm one individual, this would presumably establish that the targeted person is being treated less favorably than another. In other words, if an individual could show that a neutral policy was implemented with the intent of harming certain individuals, then that policy would violate the principle of equal treatment within the meaning of Directive 2000/78. Unfortunately, the ECJ did not explore this possibility.
The other test intrinsic to Directive 2000/78’s Framework Directive is whether the employee policy indirectly discriminates against a specific person or group. Article 2(2)(b) establishes that “indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief . . . at a particular disadvantage compared with other persons.”87
Council Directive 2000/78, supra note 8, at art. 2(2)(b).
Id. at art. 2(2)(b)(i).
Id.
The ECJ has previously grappled with the concept of indirect discrimination in the context of a facially neutral policy. For example, in Ursula Voß v. Land Berlin,90
Judgment of the Court (First Chamber) of 6 December 2007, Ursula Voß v. Land Berlin, C-300/06, EU:C:2007:757.
Opinion of Advocate General Ruiz-Jarabo Colomer of 10 July 2007, Ursula Voß v. Land Berlin, C-300/06, EU:C:2007:424,I-10587, at para. 48.
Judgment of the Court of 30 November 1993, Kirsammer-Hack v. Sidal, C-189/91, EU:C:1993:907,at ¶ 22.
Id.
an internal rule of a private undertaking may constitute indirect discrimination within the meaning of Article 2(2)(b) . . . if it is established that the apparently neutral obligation it imposes results, in fact, in persons adhering to a particular religion or belief being put at a particular disadvantage, unless it is objectively justified by a legitimate aim, such as the pursuit by the employer, in its relations with its customers, of a policy of political, philosophical and religious neutrality.94
94Achbita v. G4S, supra note 2, at ¶ 44.
Thus, an employer’s legitimate desire to present an image of ideological neutrality to its customers serves as an objective factor that is both unrelated to the resulting discrimination based on religion and legally justifies that particular employment policy.
At this point it seems clear that the AG and the ECJ effectively applied Directive 2000/78, formulated an appropriate balancing test, and established a reliable framework on which future cases can rely for guidance. Yet despite this being the right outcome based on the effective application of Directive 2000/78, it is less clear whether this is a proper outcome as envisioned by Article 13 of the E.C. Treaty. There is an unsettling disconnect between Article 13’s broad language, which grants the authority to take appropriate action to combat discrimination, and the focused scrutiny supplied by Directive 2000/78 coupled with the ECJ’s balancing of relevant interests. Taken at face value, “appropriate action to combat discrimination” evinces a purpose to stamp out discrimination should it manifest.95
E.C. Treaty, supra note 13, at art. 13.
This gap between the language of Article 13, which seeks to outright combat discrimination, and the application of Directive 2000/78, which leads to an outcome where a policy that results in discrimination against Muslim women can be justified and acceptable, is unsatisfactory. For one, no one can sensibly deny that G4S’s facially neutral policy places a greater burden on those following religions that have clothing mandates than it does on those whose religions do not require specific clothing to be worn in a public setting. Muslim women with strict clothing mandates are affected to a far greater degree by such a policy than many Christian women, for example, who are not required by any religious mandate to wear specific garb or attire in public. For context, the following is a passage from the Qur’an detailing the clothing mandates for women who follow Islam:
And tell the believing women to reduce [some] of their vision and guard their private parts and not expose their adornment except that which [necessarily] appears thereof and to wrap [a portion of] their headcovers over their chests and not expose their adornment except to their husbands, their fathers, their husbands' fathers, their sons, their husbands' sons, their brothers, their brothers' sons, their sisters' sons, their women, that which their right hands possess, or those male attendants having no physical desire, or children who are not yet aware of the private aspects of women. And let them not stamp their feet to make known what they conceal of their adornment. And turn to Allah in repentance, all of you, O believers, that you might succeed.96
96An-Nur, 24:31 (Qur’an).
The Qur’an, as commonly interpreted, teaches Muslim women that they should wear headcovers and limit visible exposure of their physical features. Should an individual wish to strictly follow this religious mandate, they, like Ms. Achbita, would be ineligible to work at G4S due to employee policy barring the wearing of religious symbols and attire. Note that such an individual becomes ineligible for employment at G4S in this regard solely by virtue of her religion. Therefore, even if such a policy does not qualify as legal discrimination under Directive 2000/78, it certainly satisfies the dictionary definition of discrimination.97
See discrimination, Merriam-Webster Dictionary (2018), http://perma.cc/DLC5-MS88(defined as “prejudiced or prejudicial outlook, action, or treatment”); See also prejudicial, Merriam-Webster Dictionary (2018), http://perma.cc/4E99-2Q5A(defined as “tending to injure or impair: detrimental”).
Nevertheless, even if one accepts an interpretation of Article 13 that would result in a different ruling by the ECJ had it not been guided by the strict requirements of Directive 2000/78, the language of Article 13 is permissive rather obligatory: “the Council . . . may take appropriate action to combat discrimination.”98
E.C. Treaty, supra note 13, at art. 13.
Protecting the freedom of religious expression is a staple among the various bodies of international law. In many ways, these various international codes and treaties have firmly established the freedom to practice one’s religion as a fundamental human right. Here the Comment introduces and briefly summarizes the major bodies of law that not only overlap with E.U. law and Directive 2000/78, but also relate directly to Ms. Achbita’s circumstance and the G4S employee policy barring religious apparel in the workplace.
However, a preliminary note must be made at this juncture. The bodies of international law to be discussed apply to state actors. However, there is some debate in the scholarly arena as to whether, and to what extent, private citizens can rely on the provisions of international treaties. For example, in the context of U.S. law, Chief Justice Marshall invented the concept of a “self-executing” treaty in 1829 when he asserted such a treaty “is carried into execution . . . whenever it operates of itself.”99
Foster v. Neilson, 27 U.S. 253, 314 (1829).
Id.
Jordan J. Paust, Self-Executing Treaties, 82 Am. J. Int'l L. 760, 767 (1988).
Oona A. Hathaway et al., International Law at Home: Enforcing Treaties in U.S. Courts, Y. J. Int’l L. 51, 53 (2012).
Medellín v. Texas, 552 U.S. 491, 506 n.3 (2008).
This similar complication arises in the context of E.U. law. The E.U. has a basic obligation to comply with international law.104
Francesca Martines, Direct Effect of International Agreements of the European Union, 25 Eur. J. Int’l L. 129, 132 (2014).
Tawhida Ahmed & Israel de Jesús Butler, The European Union and Human Rights: An International Law Perspective, 17 Eur. J. Int’l L. 771, 771 (2006).
Id.
The Regional Office for Europe of the High Commissioner for Human Rights, The European Union and International Human Rights Law 6 (2011), http://perma.cc/9C76-QUHX.
However, a detailed discussion of “self-executing” versus “non-self-executing treaties” is beyond the scope of this Comment. At a minimum, it is accepted that G4S, as a private employer, is not bound by the provisions of the following international law treaties. Additionally, this Comment does not openly suggest that Ms. Achbita has a private right of action against either her employer or the E.U. The stance this Comment takes is that the E.U., should it fail to enact legislation to ensure the preservation of freedom of religious expression for its Member States’ citizenry, is the party in violation of international law. This bold assertion is not mere conjecture. As stated by the U.N.:
International human rights law lays down obligations which States are bound to respect. By becoming parties to international treaties, States assume obligations and duties under international law to respect, to protect and to fulfil human rights. The obligation to respect means that States must refrain from interfering with or curtailing the enjoyment of human rights. The obligation to protect requires States to protect individuals and groups against human rights abuses. The obligation to fulfil means that States must take positive action to facilitate the enjoyment of basic human rights.108
108International Human Rights Law, Office of the United Nations High Commissioner for Human Rights, http://perma.cc/N358-WLAT.
As G4S is a private, nongovernmental employer, international law does not directly apply to its conduct. Therefore, G4S’s employee policy does not itself violate international law. Instead, this Comment takes the stance that a state has a positive duty to enforce the provisions of the following international treaties and resolutions to enshrine the fundamental rights established under these bodies of international law. The freedom of religious expression is the relevant fundamental right at issue. However, an analysis of whether E.U. law sufficiently protects this fundamental right for a private citizen such as Ms. Achbita cannot be viewed in isolation. As noted by the AG, G4S has its own private interests and a “policy of [ideological] neutrality does not exceed the bounds of the discretion it enjoys in the pursuit of its business.”109
Achbita v. G4S, Opinion of the AG, supra note 3, ¶ 93.
This Section of the Comment introduces the relevant bodies of international law that apply beyond simply the member states of the E.U. The purpose is to explore whether E.U. law and the approach taken by the AG and the ECJ is consistent with the legal norms and dictates of the broader international community.
1. Universal Declaration of Human Rights.
The Universal Declaration of Human Rights110
Universal Declaration of Human Rights, supra note 15.
Id.
Id., at art. 18.
Of important note is the plain language of Article 18 focusing on “freedom . . . in community. . . and in public . . . to manifest his religion or belief in . . . practice, worship, and observance.”113
Id.
See Achbita v. G4S, Opinion of the AG, supra note 3.
An alternative interpretation of Article 18 is that freedom of religious expression is not necessarily a universal freedom divorced from time, place, and manner restrictions. So long as an individual is not ultimately barred from practicing his or her religion at some times and in some places, then Article 18, under this interpretation, would not be violated by a policy banning religious apparel in the workplace. Ms. Achbita certainly has the right to be a Muslim woman, to practice her religion, and to wear a headscarf in numerous other contexts, both public and private, except for in the workplace per the ECJ’s ruling. Furthermore, as the ECJ explained, this abridgement of freedom of religious expression isn’t arbitrary, but rather an issue of two competing interests butting up against one another. The employer has an interest in creating a religiously and ideologically neutral image which conflicts with the employee’s interest in manifesting her religious beliefs in the workplace. It would be odd to think that Article 18 was meant to allow all religious practices, at all times, and in all places to fall within its scope. Such an interpretation would clearly be untenable, especially in situations where competing interests are at play.
However, a loose or malleable interpretation of Article 18 threatens to remove any force the UDHR might have in terms of protecting religious expression as a fundamental freedom. At a minimum, “[i]nvoking customary human rights law is in itself not dispositive, though it may lend weight to an existing right and affect the balancing process in a domestic legal issue which deals with human rights.”115
Li-Ann Thio, Reading Rights Rightly: The UDHR and Its Creeping Influence on the Development of Singapore Public Law, 2008 Sing. J. Legal Stud. 264, 284.
Adrienne Anderson, On Dignity and Whether the Universal Declaration of Human Rights Remains a Place of Refuge after 60 Years, 25 Am. U. Int'l L. Rev. 115, 118 (2009).
See What is the Universal Declaration of Human Rights?, Australian Human Rights Commission, http://perma.cc/T7XZ-CG9C.
Anderson, supra note 116, at 119.
Id. (quoting Jack Donnelly, Universal Human Rights in Theory and Practice, 22 (2d ed. 2003)).
The functional effect of allowing exceptions to the general rule of religious freedom, especially for the many individuals who spend a great deal of their lives in a work environment, would be to relegate freedom of religious expression to a subordinate position in the spectrum of human interests. Religious expression becomes ultimately a “do it on your own time” engagement. This is all the more concerning considering that wearing the Islamic headscarf for many devout traditional Muslim women is not optional—they are supposed to wear the headscarf any time they are in any public place. Thus, without a strict interpretation of Article 18, religions with these constant or universal requirements are not protected relative to religions that do not have such requirements. Essentially, Article 18 would allow a Catholic individual to adhere to the tenets of her religion but would not allow a Muslim individual to adhere to the tenets of her religion, simply because the Muslim individual must follow public clothing mandates whereas the Catholic individual does not. Further consider the ongoing commitments of many other religions, such as Jewish individuals who require Kosher food, or Hindu individuals who abstain from eating beef. Under this interpretation of Article 18, many widespread religious practices would have little protection under the UDHR. This position, understandably, would be unworkable if a particular religious practice created undue burden, expense, or openly violated the rights of others, but this case involves a particularly innocuous practice: the public wearing of a scarf on one’s head. As even the ECJ noted, “the work of a receptionist can . . . be performed just as well with a headscarf as without one.”120
Achbita v. G4S, Opinion of the AG, supra note 3, at ¶ 75.
2. Article 18 of the International Covenant on Civil and Political Rights.
The International Covenant on Civil and Political Rights121
International Covenant on Civil and Political Rights, supra note 16.
International Covenant on Civil and Political Rights, Equality and Human Rights Commission, http://perma.cc/HX52-89PA.
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.123
123International Covenant on Civil and Political Rights, supra note 16, at art. 18(1).
Article 18 of the ICCPR, however, adds two additional lenses not found in the UDHR by which to analyze freedom of religious expression. Article 18(2) provides that: “[n]o one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.”124
Id. at art. 18(2).
Katarzyna Ważyńska-Finck & François Finck, The Right to Change One's Religion According to Article 18 of ICCPR and the Universality of Human Rights, 9 J. Islamic St. Prac. Int'l L. 36, 36 (2013).
Id. at 43.
Devin Carpenter, Comment, “So Made That I Cannot Believe”: The ICCPR and the Protection of Non-Religious Expression in Predominantly Religious Countries, 18 Chi. J. Int'l L. 216, 227 (2017).
Article 18 protects theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief. The terms “belief” and “religion” are to be broadly construed. Article 18 is not limited in its application to traditional religions or to religions and beliefs with institutional characteristics or practices analogous to those of traditional religions. The Committee therefore views with concern any tendency to discriminate against any religion or belief for any reason, including the fact that they are newly established, or represent religious minorities that may be the subject of hostility on the part of a predominant religious community.128
128U.N. Off. of the High Comm’r for Hum. Rts., CCPR General Comment No. 22: Article 18 (Freedom of Thought, Conscience or Religion), ¶ 2, U.N. Doc. CCPR/C/21/Rev.1/Add.4 (Jul. 30, 1993).
This provision of the ICCPR warrants particular consideration as applied to the ECJ’s ruling and G4S’s employee policy. When a particular employment policy conflicts with a religious mandate, an individual is faced with a choice between adhering to his or her religious beliefs and maintaining employment. Neither Directive 2000/78 nor the ECJ addresses whether G4S’s policy could be seen as coercive in this manner. In one respect, G4S’s policy could be said to coerce Muslim women into violating their religious beliefs in order to secure employment. The pushback, of course, is that G4S is not the only employer and such women are free to explore employment opportunities elsewhere. Yet, consider the impact on Muslim women if the vast majority of employers adopted a policy similar to that of G4S. If Directive 2000/78 allows for this state of affairs to exist, it seems we have arrived at state-sanctioned coercion whereby followers of religions that mandate certain garb in public must abandon their religious beliefs to gain employment.
Ultimately, the ECJ does not pursue this line of thought. Perhaps the court felt such considerations were beyond the scope of the immediate case, or perhaps any concept of coercion was seen as merely an incidental effect of G4S’s employee policy and that Ms. Achbita had ample opportunity to seek alternative employment. In any event, the ICCPR’s bar against coercion per Article 18(2) is both a relevant and pressing concern for analyzing policies that impact religious belief and expression.
The second distinctive feature of the ICCPR is that it narrows the scope of freedom of religious expression relative to the unbounded provision of Article 18 under the UDHR. Article 18(3) states: “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.”129
International Covenant on Civil and Political Rights, supra note 16, at art. 18(3).
Id.
Alfitri, Can the Requirements of Shariah Law Regarding Criminal Punishments Be Interpreted in a Way That Is Compatible with the ICCPR and CAT?, 7 Indon. J. Int'l L. 103, 112 (2009).
In interpreting the scope of permissible limitation clauses, States parties should proceed from the need to protect the rights guaranteed under the Covenant, including the right to equality and non-discrimination on all grounds specified in articles 2, 3 and 26. Limitations imposed must be established by law and must not be applied in a manner that would vitiate the rights guaranteed in article 18.132
132CCPR General Comment No. 22: Article 18 (Freedom of Thought, Conscience or Religion), supra note 128, at ¶ 8.
Although the ECJ’s proportionality test included a “necessary and appropriate” measure that sounds similar to Article 18(3) here, recall that this test applies merely to the means needed to achieve a legitimate aim that had already been established by the employer. “Legitimate aim” under Directive 2000/78 thus appears to be a much lower threshold than the “fundamental rights” language of Article 18(3).133
Compare Council Directive 2000/78, supra note 8, and International Covenant on Civil and Political Rights, supra note 16, at art. 18(3).
Achbita v. G4S, Opinion of the AG, supra note 3, at ¶ 87.
See The Foundation of International Human Rights Law, United Nations, http://perma.cc/2LZ2-5KLZ(“[The UDHR] represents the universal recognition that basic rights and fundamental freedoms are inherent to all human beings, inalienable and equally applicable to everyone, and that every one of us is born free and equal in dignity and rights.”) (emphasis added).
This analysis leads to the conclusion that Article 18(3) of the ICCPR sets a strict condition that the freedom of religious expression can be abridged only in extreme circumstances such as those “necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.”136
International Covenant on Civil and Political Rights, supra note 16, at art. 18(3).
CCPR General Comment No. 22: Article 18 (Freedom of Thought, Conscience or Religion), supra note 128, at ¶ 8.
International Covenant on Civil and Political Rights, supra note 16, at art. 18(1).
3. Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief.
The Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief139
Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, supra note 17.
Id.
Id. at art. 2(1).
For the purposes of the present Declaration, the expression “intolerance and discrimination based on religion or belief” means any distinction, exclusion, restriction or preference based on religion or belief and having as its purpose or as its effect nullification or impairment of the recognition, enjoyment or exercise of human rights and fundamental freedoms on an equal basis.142
142Id. at art. 2(2).
Of critical importance in comparing this body of international law to E.U. law is the way in which discrimination on the grounds of religion or belief is defined. Directive 2000/78 differentiates between “direct” and “indirect” discrimination and treats each type differently under separate provisions; the DEAFID groups both restrictions that are “purposeful” and those that “[have] as [their] effect” impairment on religious exercise into a single category of “discrimination.”143
Id.
An additional analytical point, however, is that Article 2(2) specifically defines discrimination as occurring when a restriction prevents “enjoyment or exercise of human rights and fundamental freedoms on an equal basis.”144
Id. (emphasis added).
The response argument is that, by its very nature, applying a uniform policy to a range of unequal religious beliefs produces inequitable results. A policy such as G4S’s thus favors, directly or indirectly, certain religions over others. As a result of the company policy, a Muslim woman is not equally allowed to practice her religious beliefs to the same degree of freedom as a follower of a religion that has no public clothing requirements. It becomes a “square peg, round hole” type of scenario when a multitude of different religions with vastly different defining characteristics and religious mandates are expected to conform to a standardized policy. This produces an unequal basis for exercise of religious belief because certain religions are more heavily burdened than others. In effect, individuals such as Ms. Achbita are discriminated against because G4S’s policy impairs the enjoyment or exercise of their particular set of religious beliefs to a greater extent than it does for followers of many other religions.
4. European Convention on Human Rights.
The European Convention on Human Rights145
European Convention on Human Rights, supra note 18.
The European Convention on Human Rights, Council of Europe, http://perma.cc/QVQ8-YLQX.
Id.
Id.
Convention for the Protection of Human Rights and Fundamental Freedoms, supra note 18, at art. 9(1).
Also similar to the ICCPR, the ECHR sets limits on the extent to which such freedoms can be exercised. Article 9(2) states:
Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.150
150Id. at art. 9(2).
Note how similar this is to the language of the ICCPR at Article 18(3) which allows restrictions on religious expression that are “necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.”151
International Covenant on Civil and Political Rights, supra note 16, at art. 18(3).
At this point, it is necessary to briefly reiterate a point concerning the scope of certain international law such as the ECHR. A reader familiar with the ECHR might remark that the it is applicable only to the Member States. In this regard, a private action must be brought against a state party when the individual’s rights under the ECHR have been violated. Therefore, since a company like G4S is a private employer, the terms of the ECHR do not apply directly to G4S. Furthermore, since Ms. Achbita brought a private action against her private employer, the ECHR seems inapplicable. While it is true that Ms. Achbita could not rely on the law of the ECHR against her private employer, it is important to note that Article 1 of the ECHR imposes an affirmative duty on Member States (referred to as “High Contracting Parties”) to ensure the rights and freedoms established in the ECHR for their citizens. Specifically, Article 1 states: “[o]bligation to respect Human Rights – The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.”152
European Convention on Human Rights, supra note 18, at art. 1.
In all the cases, the Convention institutions have found that in a democratic society, the relevant member state is entitled to ban adult women from wearing the Islamic headscarf on the basis that such bans have been prescribed by law, have a legitimate aim, that is, protecting the rights and freedoms of others, and are necessary in a democratic society.153
153Jill Marshall, Freedom of Religious Expression and Gender Equality: Sahin v. Turkey, 69 Mod. L. Rev. 452, 453 (2006).
A particular case Marshall focuses on is Sahin v. Turkey, where Ms. Sahin brought a suit against the Republic of Turkey after she faced disciplinary action while attending Istanbul University.154
Sahin v. Turkey, 2005-XI Eur. Ct. H.R. 173, ¶ 15–22.
Id. at ¶ 16.
Id. at ¶ 3. Article 8 of the ECHR deals with the right to respect for private and family life; Article 14 prohibits discrimination in the form of unequal application of the provisions of the ECHR on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
Id. at ¶ 14.
Id. at ¶ 114. Recall that under Article 9(2) of the ECHR “[f]reedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.” Convention for the Protection of Human Rights and Fundamental Freedoms, supra note 18, at art. 9(2).
Sahin v. Turkey, supra note 154, at ¶ 114.
Similarly, in Karaduman v. Turkey, the court upheld a university policy whereby graduating students were required to supply an identity photograph containing no head coverings or headwraps in order to receive their degree certificate.160
Karaduman v. Turkey, App. No. 16278/90, 74 Eur. Comm’n. H.R. Dec. & Rep. 93 (1993).
Id. at 102.
Id. at 103.
Id.
Id. at 108.
Id.
In Dahlab v. Switzerland, the European Court of Human Rights upheld a school policy forbidding educators to wear a headscarf in the performance of professional duties.166
Dahlab v. Switzerland, 2001-V Eur. Ct. H.R. 447.
Id. at 451.
Id. at 452.
Id. at 456.
Id. at 463.
Id.
Dahlab v. Switzerland, supra note 166.
The running theme thus far suggests that individuals indeed have a legitimate legal interest in wearing religious clothing and symbols in the workplace, but that this individualized interest is outweighed by state interests of secularism,173
See generally Sahin v. Turkey, supra note 154.
See generally Dahlab v. Switzerland, supra note 166.
See generally Karaduman v. Turkey, supra note 160.
European Convention on Human Rights, supra note 18, at art. 9(2).
Yet a case could be made that an interest in image neutrality by a private employer fails to rise to the same level of significance of such a policy at the state level. The simple case would be to compare a policy barring religious apparel in the workplace to the same policy in a school setting, such as was at issue in Dahlab v. Switzerland.177
Dahlab v. Switzerland, supra note 166.
The harder case would be to consider whether there is a substantial enough difference between a university setting and a private employer setting to encourage a different analytical outcome. There certainly is an apparent danger in creating the appearance that a state sponsors or favors a particular religious set. Without a baseline of ideological neutrality, state institutions could appear to promote a specific religion(s) and this could affect individuals’ willingness to demonstrate non-sponsored religious beliefs. This, in turn, could create a chilling effect that would stifle the free exchange of ideas and thus result in decreased societal wellbeing.
In the university setting, present in Sahin v. Turkey178
Sahin v. Turkey, supra note 154.
Karaduman v. Turkey, supra note 160.
See Emanuel Tăvală, Religious Symbols and Dress in Europe, 1 Rom. J. Comp. L. 369, 372 (2010).
Id. at 373.
Dahlab v. Switzerland, supra note 166, at 456.
The ECJ determined that G4S had a legitimate aim in establishing a specific company image that involved ideological neutrality.183
Achbita v. G4S, supra note 2, at ¶ 44.
European Convention on Human Rights, supra note 18, at art. 9(2).
Furthermore, recall that Article 18(3) of the ICCPR states that: “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.”185
International Covenant on Civil and Political Rights, supra note 16, at art. 18(3).
Manisuli Ssenyonjo, Limits on the Freedom to Manifest One’s Religion in Educational Institutions in Uganda and the United Kingdom, 7 Int'l J. Const. L. 275, 279 (2009).
The key point to remember is that any limitation on religious expression must be necessary per international law.187
See, for example, International Covenant on Civil and Political Rights, supra note 16, at art. 18(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.”).
Joan Squelch, Religious Symbols and Clothing in the Workplace: Balancing the Respective Rights of Employees and Employers, 20 Murdoch U. L. Rev. 38, 45 (2013).
Id. at 45 (quoting Handyside v. The United Kingdom, App. No. 5493/72, 1 Eur. Comm’n H.R. Dec & Rep. 737 (1976)).
[A]n internal rule of a private undertaking may constitute indirect discrimination . . . if it is established that the apparently neutral obligation it imposes results, in fact, in persons adhering to a particular religion or belief being put at a particular disadvantage, unless it is objectively justified by a legitimate aim, such as the pursuit by the employer, in its relations with its customers, of a policy of political, philosophical and religious neutrality, and the means of achieving that aim are appropriate and necessary . . .190
190Achbita v. G4S, supra note 2, at ¶ 44.
Although this is the only example of a “legitimate aim” the court gives, the simple desire of a company to present an image of religious neutrality arguably does not rise to the level of a pressing social need. This is especially true considering one can achieve the same effect as an image of religious neutrality by either posting disclaimers around the place of business, or by simply hiring individuals of various faiths and allowing all to display religious symbols or wear their faith’s corresponding religious attire. Once again, the ECJ’s conceptualization of “legitimate aim” tugs against the international law concept of a “necessary” limitation. Opponents of the ECJ’s ruling have openly disagreed with the “assessment that the aim pursued by the ban imposed by G4S was legitimate, necessary and proportionate.”191
Amnesty International, supra note 6.
This concluding section offers some final analyses and suggests potential solutions to the disparity between broader international law and E.U. law. A primary concern is how Directive 2000/78 divides discrimination into two categories: direct discrimination and indirect discrimination.192
Council Directive 2000/78, supra note 8, at art. 2(2)(a)–(b).
See, for example, Achbita v. G4S, supra note 2.
See Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, supra note 17, at art. 2(2).
A simpler approach would be to interpret “direct” discrimination to include policies that, ex ante, will clearly lead to a disparate impact on members of various religions. G4S implemented their employee policy with full knowledge that the policy would place little burden upon followers of religions without clothing mandates, atheists, and secular individuals. At the same time, G4S was aware of the heavy burden this policy places on Muslim women and others who follow religions with clothing mandates. Because G4S knew of the policy’s disparate effect before it was implemented, such a policy could logically be deemed a form of direct discrimination. At the very least G4S was cognizant of the discriminatory effect their policy would have on individuals such as Ms. Achbita. This solution would strengthen protections for religious expression since an employer cannot be excused for direct discrimination under Directive 2000/78 as doing so would violate the principle of equal treatment.195
Council Directive 2000/78, supra note 8, at art. 2.
Although this is perhaps the simplest solution to the issue, it is likely the most untenable. The challenge would not only be in determining whether it is or can be known ex ante that a policy is discriminatory, but also in reaching legal determinations concerning those policies that align with existing law for when a state interest overrides discriminatory impact. This solution also ignores the relevant interest of the business owner in establishing an ideological-neutral image, which the ECJ has determined constitutes a legitimate aim.196
Achbita v. G4S, supra note 2, at ¶ 44.
A second solution would be to interpret both “legitimate aim” and acceptable “limitations” on the freedom of religious expression strictly in line with Article 18 of the ICCPR.197
International Covenant on Civil and Political Rights, supra note 16, at art. 18.
Id. at art. 18(3).
Of course this second approach assumes that an employer’s right to run his or her business in the fashion they desire is not itself a fundamental right. It further assumes that courts are willing to adopt a more proactive approach to fulfilling affirmative duties under international law by maximizing protections for religious expression rather than relying solely on their current domestic counterparts. However, a benefit to this approach is that it would be the most workable solution as it would continue to allow for the distinction between direct and indirect discrimination as it exists in E.U. case law and under the Framework Directive of Directive 2000/78.199
Council Directive 2000/78, supra note 8.
A final approach to the issue is recognizing that disparate treatment of those with certain beliefs, even by a seemingly neutral employment provision, constitutes general discrimination. Therefore, a broad interpretation of international and E.U. law inherently requires exemptions for individuals thus affected. As Amy Dunne notes:
Religious exemptions in pluralist democracies . . . are indispensable to the preservation of religious plurality. Tolerance, particularly when plurality means that society will comprise of persons unable to comply with certain laws for religious reasons, is expressed through the granting of exemptions from laws which would force a practitioner to violate their mandated beliefs. Providing for plurality of belief but denying practitioners the ability to fulfil the mandates of their beliefs would constitute an empty tolerance.200
200Amy Dunne, Tracing the Scope of Religious Exemptions under National and EU Law: Section 37(1) of the Irish Employment Equality Acts 1998–2011 and Ireland's Obligations under the EU Framework Directive on Employment and Occupation, Directive 2000/78/EC, 31 Utrecht J. Int'l & Eur. L. 33, 36 (2015).
The primary benefit of protecting freedom of religious expression through exemptions is how malleable this approach could be. For example, rather than advocate that a problematic policy as a whole must fail because it is discriminatory, such a policy can stand but additionally allow for affirmative exemptions for interested individuals belonging to religious groups who are adversely affected. This approach would be workable whether such exemptions are newly established affirmative exemptions or a position is adopted that such exemptions are implied already under existing international law. Under this regime, if an employer’s policy produces a disparate impact, the policy as a whole can remain yet the particular individual whose religious beliefs conflict with the general policy can automatically qualify for a legal exemption. Such automatic legal protection does have the potential to be abused, but the relevant legal regime could further allow for employers to terminate the abusing employee with impunity upon a showing of bad faith.
Under an alternative approach, it is not necessary to introduce changes to current law in the form of an array of affirmative exemptions. Current international law can be interpreted as inherently requiring such exemptions by its de facto ban on discrimination. This interpretation views exemptions as pre-existing under current international law, even if not previously utilized to date, rather than as entirely new solutions to the present problem. Such a solution, although admittedly a bold proposal, would be simple and would be particularly well-suited to protect the beliefs and religious practices of members of a minority religion. The primary downside of such an approach, however, is that the solution could burden employers by making their policies that are designed to generate an image of religious neutrality entirely ineffective in the presence of one outwardly religious employee.
Whatever direction the ECJ takes moving forward, it is undeniable that individuals like Ms. Achbita are placed in a terrible predicament when faced with employee policies that directly conflict with one’s religious mandates. Should such policies become the rule rather than the exception, employment itself will become difficult, if not ultimately unattainable, for many pious individuals. These considerations bolster the baseline statement that freedom of religious expression is a fundamental human right. As enshrined in the dictates of international law, such a fundamental human right should only be limited when absolutely necessary. Ms. Achbita’s wearing of a headscarf in the workplace harmed no one. Should Ms. Achbita find future, non-discriminating employment and is thereinafter allowed to wear the hijab in her new workplace, our society will surely continue to function.
- 1Aristotle, Aristotle: Selections 464 (Terence Irwin & Gail Fine trans., 1995).
- 2Judgment of 14 March 2017, Samira Achbita v. G4S Secure Solutions NV, C‑157/15, EU:C:2017:203.
- 3Opinion of Advocate General Kokott delivered on 31 May 2016, Samira Achbita v. G4S Secure Solutions NV, C‑157/15, EU:C:2016:382.
- 4Achbita v. G4S, supra note 2.
- 5Achbita v. G4S, Opinion of the AG, supra note 3, at ¶ 16.
- 6Amnesty International, Wearing the Headscarf in the Workplace—Observations on Discrimination Based on Religion in the Achbita and Bougnaoui Cases (2016), http://perma.cc/W7C8-3UK9.
- 7Achbita v. G4S, Opinion of the AG, supra note 3, at ¶ 20 (summarizing the Belgian appellate court’s holding).
- 8Council Directive 2000/78 of 27 November 2000, Establishing a General Framework for Equal Treatment in Employment and Occupation, 2000 O.J. (L 303) 18 (EC).
- 9Achbita v. G4S, Opinion of the AG, supra note 3, at ¶ 22 (detailing the Court of Cassation’s referred legal question).
- 10Achbita v. G4S, supra note 2, at ¶ 32.
- 11Id. at ¶ 5.
- 12Id. at ¶ 44.
- 13Consolidated Version of the Treaty Establishing the European Community, Dec. 29, 2006, 2006 O.J. (C 321) 37 [hereinafter E.C. Treaty].
- 14Id. at art. 1 (“By this Treaty, the High Contracting Parties establish among themselves a European Union, hereinafter called ‘the Union’ . . . The Union shall be founded on the European Communities, supplemented by the policies and forms of cooperation established by this Treaty. Its task shall be to organise, in a manner demonstrating consistency and solidarity, relations between the Member States and between their peoples.”).
- 15G.A. Res. 217 III (A), Universal Declaration of Human Rights (Dec. 10, 1948).
- 16G.A. Res. 2200A (XXI), International Covenant on Civil and Political Rights, art. 18 (Dec. 16, 1966).
- 17G.A. Res. 36/55, Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (Nov. 25, 1981).
- 18Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 221.
- 19As a point of clarity, the E.U. currently has 28 member states (see European Union, Citizens Information, http://perma.cc/CTE8-EPPE). Thus, the E.C. Treaty applies only to these 28 member states. The European Convention on Human Rights, on the other hand, applies to the entire Council of Europe, which contains a total of 47 countries, 28 of which are also members of the E.U. (see Member States of the European Union and the Council of Europe, Europe in Strasbourg, http://perma.cc/TL8M-H8AR). Broader still, the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights are products of the United Nations and apply to all U.N. members. There are presently 193 Member States of the U.N. (see Growth in United Nations Membership, United Nations, http://perma.cc/YNE2-2LEX).
- 20See Council Directive 2000/78, supra note 8, at art. 2(2)(a)–(b).
- 21Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, supra note 17.
- 22Id. at art. 2(1).
- 23Id. at art. 2(2) (emphasis added).
- 24Council Directive 2000/78, supra note 8, at art. 2(2)(a).
- 25Id. at art. 2(2)(b).
- 26Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, supra note 17, at art. 4.
- 27Id.
- 28Achbita v. G4S, supra note 2; Achbita v. G4S, Opinion of the AG, supra note 3.
- 29Achbita v. G4S, supra note 2.
- 30As a point of clarification, the ECJ’s Judgment of the Court contains a recitation of the relevant law, a very brief analysis, and then states its legal ruling. This constitutes the official legal determination by the court. By contrast, the Opinion of the AG, although not itself the official holding of the ECJ, provides a detailed and thorough legal analysis of the issues raised. The Opinion of the AG was directly relied on by the ECJ in reaching its ruling, and the ECJ adopted virtually every legal conclusion reached by the AG. As such, this Comment often focuses on the legal analysis by the AG, especially when the ECJ’s legal reasoning is unclear or underdeveloped as presented in the Judgment of the Court. Any disparities between the Opinion of the AG and the ECJ’s official Judgment of the Court, or any position expounded by the AG that was not officially adopted by the ECJ, will be duly noted.
- 31Achbita v. G4S, Opinion of the AG, supra note 3, at ¶ 16.
- 32Achbita v. G4S, supra note 2, at ¶ 12.
- 33Achbita v. G4S, Opinion of the AG, supra note 3, at ¶ 18.
- 34Id.
- 35Claire Best, Muslim Headscarf Ban Justified by Employer's Dress Code Policy, Lexology (June 10, 2016), ¶ 4, http://perma.cc/5QHR-RY3U.
- 36Achbita v. G4S, supra note 22, at ¶ 21.
- 37Id. at ¶ 24.
- 38Council Directive 2000/78, supra note 8, at art. 2(2)(a).
- 39Achbita v. G4S, supra note 2, at ¶ 31–32.
- 40Achbita v. G4S, Opinion of the AG, supra note 3, at ¶ 48.
- 41Id.
- 42Achbita v. G4S, supra note 2, at ¶ 34.
- 43Council Directive 2000/78, supra note 8, at art. 2(2)(b).
- 44Achbita v. G4S, supra note 2, at ¶ 35.
- 45Council Directive 2000/78, supra note 8, at art. 2(2)(b)(i).
- 46Achbita v. G4S, supra note 2, at ¶ 35.
- 47Council Directive 2000/78, supra note 8.
- 48Achbita v. G4S, supra note 2, at ¶ 44.
- 49Council Directive 2000/78, supra note 8, at art. 4(1).
- 50Id.
- 51Achbita v. G4S, Opinion of the AG, supra note 3, at ¶ 76.
- 52Achbita v. G4S, supra note 2, at ¶ 37.
- 53Achbita v. G4S, Opinion of the AG, supra note 3, at ¶ 87.
- 54Id. at ¶ 94.
- 55Achbita v. G4S, supra note 2, at ¶ 38.
- 56Achbita v. G4S, Opinion of the AG, supra note 3, at ¶ 91.
- 57Id.
- 58Id. at ¶ 103.
- 59Id. at ¶ 104.
- 60Id. at ¶ 107.
- 61Council Directive 2000/78, supra note 8, at art. 4(1).
- 62Id. at art. 2(2)(b)(i).
- 63See sensu stricto, Merriam-Webster Dictionary (2018), http://perma.cc/DL7E-52PV(defined as “in a narrow or strict sense”).
- 64Achbita v. G4S, Opinion of the AG, supra note 3, at ¶ 112.
- 65Id. at ¶ 117–22.
- 66Id. at ¶ 125.
- 67Achbita v. G4S, supra note 2, at ¶ 44.
- 68Id. at ¶ 40.
- 69Id. at ¶ 42 (emphasis added).
- 70Id.
- 71Id. at ¶ 43.
- 72Id.
- 73Achbita v. G4S, Opinion of the AG, supra note 3, at ¶ 126.
- 74Achbita v. G4S, supra note 2, at ¶ 42.
- 75Achbita v. G4S, Opinion of the AG, supra note 3, at ¶ 127.
- 76E.C. Treaty, supra note 13.
- 77Treaty of Amsterdam Amending the Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Acts, Oct. 2, 1997, 1997 O.J. (C 340) 1. The Treaty of Amsterdam had the additional effect of renumbering various articles of the amended EC Treaty. Thus, Article 13 is the equivalent of Article 6(a) post-renumbering.
- 78Id. at art. 13.
- 79Council Directive 2000/78, supra note 8.
- 80Susanne D. Burri & Filip Dorssemont, The Transposition of the Race Directive (2000/43) and the Framework Directive on Equal Treatment in Employment (2000/78) into Dutch and Belgian Law, 21 Int'l J. Comp. Lab. L. & Indus. Rel. 537, 538 (2005).
- 81Council Directive 2000/78, supra note 8, at art. 1.
- 82Id.
- 83Id. at art. 2(1).
- 84Id. at art. 2(2)(a).
- 85Id.
- 86See Amnesty International, supra note 6.
- 87Council Directive 2000/78, supra note 8, at art. 2(2)(b).
- 88Id. at art. 2(2)(b)(i).
- 89Id.
- 90Judgment of the Court (First Chamber) of 6 December 2007, Ursula Voß v. Land Berlin, C-300/06, EU:C:2007:757.
- 91Opinion of Advocate General Ruiz-Jarabo Colomer of 10 July 2007, Ursula Voß v. Land Berlin, C-300/06, EU:C:2007:424,I-10587, at para. 48.
- 92Judgment of the Court of 30 November 1993, Kirsammer-Hack v. Sidal, C-189/91, EU:C:1993:907,at ¶ 22.
- 93Id.
- 94Achbita v. G4S, supra note 2, at ¶ 44.
- 95E.C. Treaty, supra note 13, at art. 13.
- 96An-Nur, 24:31 (Qur’an).
- 97See discrimination, Merriam-Webster Dictionary (2018), http://perma.cc/DLC5-MS88(defined as “prejudiced or prejudicial outlook, action, or treatment”); See also prejudicial, Merriam-Webster Dictionary (2018), http://perma.cc/4E99-2Q5A(defined as “tending to injure or impair: detrimental”).
- 98E.C. Treaty, supra note 13, at art. 13.
- 99Foster v. Neilson, 27 U.S. 253, 314 (1829).
- 100Id.
- 101Jordan J. Paust, Self-Executing Treaties, 82 Am. J. Int'l L. 760, 767 (1988).
- 102Oona A. Hathaway et al., International Law at Home: Enforcing Treaties in U.S. Courts, Y. J. Int’l L. 51, 53 (2012).
- 103Medellín v. Texas, 552 U.S. 491, 506 n.3 (2008).
- 104Francesca Martines, Direct Effect of International Agreements of the European Union, 25 Eur. J. Int’l L. 129, 132 (2014).
- 105Tawhida Ahmed & Israel de Jesús Butler, The European Union and Human Rights: An International Law Perspective, 17 Eur. J. Int’l L. 771, 771 (2006).
- 106Id.
- 107The Regional Office for Europe of the High Commissioner for Human Rights, The European Union and International Human Rights Law 6 (2011), http://perma.cc/9C76-QUHX.
- 108International Human Rights Law, Office of the United Nations High Commissioner for Human Rights, http://perma.cc/N358-WLAT.
- 109Achbita v. G4S, Opinion of the AG, supra note 3, ¶ 93.
- 110Universal Declaration of Human Rights, supra note 15.
- 111Id.
- 112Id., at art. 18.
- 113Id.
- 114See Achbita v. G4S, Opinion of the AG, supra note 3.
- 115Li-Ann Thio, Reading Rights Rightly: The UDHR and Its Creeping Influence on the Development of Singapore Public Law, 2008 Sing. J. Legal Stud. 264, 284.
- 116Adrienne Anderson, On Dignity and Whether the Universal Declaration of Human Rights Remains a Place of Refuge after 60 Years, 25 Am. U. Int'l L. Rev. 115, 118 (2009).
- 117See What is the Universal Declaration of Human Rights?, Australian Human Rights Commission, http://perma.cc/T7XZ-CG9C.
- 118Anderson, supra note 116, at 119.
- 119Id. (quoting Jack Donnelly, Universal Human Rights in Theory and Practice, 22 (2d ed. 2003)).
- 120Achbita v. G4S, Opinion of the AG, supra note 3, at ¶ 75.
- 121International Covenant on Civil and Political Rights, supra note 16.
- 122International Covenant on Civil and Political Rights, Equality and Human Rights Commission, http://perma.cc/HX52-89PA.
- 123International Covenant on Civil and Political Rights, supra note 16, at art. 18(1).
- 124Id. at art. 18(2).
- 125Katarzyna Ważyńska-Finck & François Finck, The Right to Change One's Religion According to Article 18 of ICCPR and the Universality of Human Rights, 9 J. Islamic St. Prac. Int'l L. 36, 36 (2013).
- 126Id. at 43.
- 127Devin Carpenter, Comment, “So Made That I Cannot Believe”: The ICCPR and the Protection of Non-Religious Expression in Predominantly Religious Countries, 18 Chi. J. Int'l L. 216, 227 (2017).
- 128U.N. Off. of the High Comm’r for Hum. Rts., CCPR General Comment No. 22: Article 18 (Freedom of Thought, Conscience or Religion), ¶ 2, U.N. Doc. CCPR/C/21/Rev.1/Add.4 (Jul. 30, 1993).
- 129International Covenant on Civil and Political Rights, supra note 16, at art. 18(3).
- 130Id.
- 131Alfitri, Can the Requirements of Shariah Law Regarding Criminal Punishments Be Interpreted in a Way That Is Compatible with the ICCPR and CAT?, 7 Indon. J. Int'l L. 103, 112 (2009).
- 132CCPR General Comment No. 22: Article 18 (Freedom of Thought, Conscience or Religion), supra note 128, at ¶ 8.
- 133Compare Council Directive 2000/78, supra note 8, and International Covenant on Civil and Political Rights, supra note 16, at art. 18(3).
- 134Achbita v. G4S, Opinion of the AG, supra note 3, at ¶ 87.
- 135See The Foundation of International Human Rights Law, United Nations, http://perma.cc/2LZ2-5KLZ(“[The UDHR] represents the universal recognition that basic rights and fundamental freedoms are inherent to all human beings, inalienable and equally applicable to everyone, and that every one of us is born free and equal in dignity and rights.”) (emphasis added).
- 136International Covenant on Civil and Political Rights, supra note 16, at art. 18(3).
- 137CCPR General Comment No. 22: Article 18 (Freedom of Thought, Conscience or Religion), supra note 128, at ¶ 8.
- 138International Covenant on Civil and Political Rights, supra note 16, at art. 18(1).
- 139Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, supra note 17.
- 140Id.
- 141Id. at art. 2(1).
- 142Id. at art. 2(2).
- 143Id.
- 144Id. (emphasis added).
- 145European Convention on Human Rights, supra note 18.
- 146The European Convention on Human Rights, Council of Europe, http://perma.cc/QVQ8-YLQX.
- 147Id.
- 148Id.
- 149Convention for the Protection of Human Rights and Fundamental Freedoms, supra note 18, at art. 9(1).
- 150Id. at art. 9(2).
- 151International Covenant on Civil and Political Rights, supra note 16, at art. 18(3).
- 152European Convention on Human Rights, supra note 18, at art. 1.
- 153Jill Marshall, Freedom of Religious Expression and Gender Equality: Sahin v. Turkey, 69 Mod. L. Rev. 452, 453 (2006).
- 154Sahin v. Turkey, 2005-XI Eur. Ct. H.R. 173, ¶ 15–22.
- 155Id. at ¶ 16.
- 156Id. at ¶ 3. Article 8 of the ECHR deals with the right to respect for private and family life; Article 14 prohibits discrimination in the form of unequal application of the provisions of the ECHR on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
- 157Id. at ¶ 14.
- 158Id. at ¶ 114. Recall that under Article 9(2) of the ECHR “[f]reedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.” Convention for the Protection of Human Rights and Fundamental Freedoms, supra note 18, at art. 9(2).
- 159Sahin v. Turkey, supra note 154, at ¶ 114.
- 160Karaduman v. Turkey, App. No. 16278/90, 74 Eur. Comm’n. H.R. Dec. & Rep. 93 (1993).
- 161Id. at 102.
- 162Id. at 103.
- 163Id.
- 164Id. at 108.
- 165Id.
- 166Dahlab v. Switzerland, 2001-V Eur. Ct. H.R. 447.
- 167Id. at 451.
- 168Id. at 452.
- 169Id. at 456.
- 170Id. at 463.
- 171Id.
- 172Dahlab v. Switzerland, supra note 166.
- 173See generally Sahin v. Turkey, supra note 154.
- 174See generally Dahlab v. Switzerland, supra note 166.
- 175See generally Karaduman v. Turkey, supra note 160.
- 176European Convention on Human Rights, supra note 18, at art. 9(2).
- 177Dahlab v. Switzerland, supra note 166.
- 178Sahin v. Turkey, supra note 154.
- 179Karaduman v. Turkey, supra note 160.
- 180See Emanuel Tăvală, Religious Symbols and Dress in Europe, 1 Rom. J. Comp. L. 369, 372 (2010).
- 181Id. at 373.
- 182Dahlab v. Switzerland, supra note 166, at 456.
- 183Achbita v. G4S, supra note 2, at ¶ 44.
- 184European Convention on Human Rights, supra note 18, at art. 9(2).
- 185International Covenant on Civil and Political Rights, supra note 16, at art. 18(3).
- 186Manisuli Ssenyonjo, Limits on the Freedom to Manifest One’s Religion in Educational Institutions in Uganda and the United Kingdom, 7 Int'l J. Const. L. 275, 279 (2009).
- 187See, for example, International Covenant on Civil and Political Rights, supra note 16, at art. 18(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.”).
- 188Joan Squelch, Religious Symbols and Clothing in the Workplace: Balancing the Respective Rights of Employees and Employers, 20 Murdoch U. L. Rev. 38, 45 (2013).
- 189Id. at 45 (quoting Handyside v. The United Kingdom, App. No. 5493/72, 1 Eur. Comm’n H.R. Dec & Rep. 737 (1976)).
- 190Achbita v. G4S, supra note 2, at ¶ 44.
- 191Amnesty International, supra note 6.
- 192Council Directive 2000/78, supra note 8, at art. 2(2)(a)–(b).
- 193See, for example, Achbita v. G4S, supra note 2.
- 194See Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, supra note 17, at art. 2(2).
- 195Council Directive 2000/78, supra note 8, at art. 2.
- 196Achbita v. G4S, supra note 2, at ¶ 44.
- 197International Covenant on Civil and Political Rights, supra note 16, at art. 18.
- 198Id. at art. 18(3).
- 199Council Directive 2000/78, supra note 8.
- 200Amy Dunne, Tracing the Scope of Religious Exemptions under National and EU Law: Section 37(1) of the Irish Employment Equality Acts 1998–2011 and Ireland's Obligations under the EU Framework Directive on Employment and Occupation, Directive 2000/78/EC, 31 Utrecht J. Int'l & Eur. L. 33, 36 (2015).