What Not to Wear: Religious Dress and Workplace Policies in Europe

• Jurisdiction: European Union
• Citation: Vol. 47 No. 2
• Publication year: 2019

WHAT NOT TO WEAR: RELIGIOUS DRESS AND WORKPLACE POLICIES IN EUROPE

Sarah Lanier Flanders^*

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TABLE OF CONTENTS

I. INTRODUCTION.......................................................................................576

II. PRINCIPLES OF AUTONOMY IN THE ECHR............................................579

III. RELIGIOUS DRESS AND A POLICY OF NEUTRALITY...............................584

IV. RELIGIOUS DISCRIMINATION IN EEOC V. ABERCROMBIE & FITCH STORES, INC.....................................................................................588

V. CONCLUSION.........................................................................................590

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I. Introduction

Why are religious freedoms important? Do they deserve the same degree of protection and deference as other fundamental rights, such as freedom of speech, freedom of association, and freedom of assembly? One cannot doubt the impact of religion on society, law and customs, and its influence on theories of morality and government.¹ Historically, religious beliefs have shaped the human experience.² Additionally, many psychologists recognize that human beings' desire "to create a positive social identity for themselves, either as individuals or members of a group."³ One way people have filled this desire is by forming groups based on shared collective religious identities.⁴ Today, religious pluralism dominates the international community, as each religion brings its own teachings, traditions, and influences.⁵ Rapid globalization and migration patterns have accelerated the growth of religious pluralism.⁶ As a consequence, the coexistence of faith communities is a phenomenon in almost every part of the world.⁷ According to law and religion scholar John Witte Jr., "[r]eligion is an ineradicable condition of human lives and communities," because it provides individuals and communities with a system of values upon which to govern themselves.⁸

When practicing one's religion, religious dress often carries significance. Members of religious groups may use dress as an outward expression of their inward beliefs. Dress is one way to signify a person's membership to a particular group and reveals much about his or her identity.⁹ In Europe, however, the right to wear religious dress varies significantly and continues to remain a controversial issue.¹⁰ Indeed, the religious jurisprudence of the European Court of Human Rights ("ECtHR") is muddled at best, calling attention to this recent phenomenon.¹¹ According to Dutch scholar Meins G.S. Coetsier, this

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phenomenon may be an outgrowth of the "spiritual disease" rampant in Europe, a phrase he uses to describe the spread of negative attitudes and intolerance toward traditional monotheistic religious expressions.¹² Some European politicians, activists and secular fundamentalists are targeting Islamic, Jewish and Christian influences in the public sphere in hopes of limiting or prohibiting religious expression, including the wearing of visible religious symbols.¹³

Moreover, several European countries have imposed clear restrictions on religious dress.¹⁴ France, for example, was the first European country in 2011 to ban the wearing of religious scarves and garments in public due to their allegedly oppressive stigma.¹⁵ Specifically, this ban prohibits women from wearing the Islamic burqa, a veil that fully covers one's face, in public places.¹⁶ Despite France's interests in reaffirming its commitment to laïcité -the principle that religion is fundamentally incompatible with the secular French Republic and public manifestations of religious beliefs should be confined to the private sphere - these intentions are not always well received.¹⁷ On the other hand, the European Court allows Italy to hang crucifixes in government-run schools and requires that the United Kingdom allow flight attendants to wear Christian necklaces to work.¹⁸ As legal scholar Ronan McCrea noted, these restrictions on religious freedom, especially towards Muslims, reflect concerns surrounding terrorism and immigration, and have given new political importance to the relationship between religion, the law, and the state.¹⁹ European states have reacted to threats of terrorism, the rapid influx of foreigners, and increased globalization by promoting secularism and

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non-discrimination in public life, especially in the workplace.²⁰ In a similar vein, the ECtHR has afforded states a "wide margin of appreciation" to reconcile freedom of conscience and freedom from discrimination.²¹ In other words, the ECtHR grants states great latitude to enforce policies, rules, and laws that limit religious freedom, so long as those limitations are necessary and proportionate to the state's legitimate aim.²²

The Court of Justice of the European Union (CJEU) is another European Court that has followed the ECtHR's footsteps regarding religious freedom jurisprudence. The CJEU adjudicates requests for preliminary rulings from national courts, as well as actions for annulments and appeals to ensure that European Union (EU) law is interpreted and applied uniformly in each EU country.²³ While national courts of EU countries are required to ensure that EU law is properly applied, those courts may reach different interpretations of the law.²⁴ If a national court doubts the interpretation or validity of an EU law, it can request clarification from the CJEU.²⁵ This mechanism allows EU countries to determine whether a national law or practice is compatible with EU law.²⁶

In March 2017, the CJEU grappled with the role of religion in the workplace. The CJEU upheld an employer's internal rule that prohibited all outward expressions of religious, political, and philosophical association or belief, including the wearing of garments.²⁷ This judgment was in response to questions posed by the Court of Cassation, a national court in Belgium that had adjudicated the dispute between the parties. The national court sought a preliminary ruling to clarify the interpretation of a Council Directive concerning equal treatment in the workplace.²⁸ Critics have characterized the CJEU's judgment as "a direct attack on women wearing hijabs at work" and "a thinly veiled measure targeting Muslims."²⁹

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This Note seeks to examine the impact of the recent CJEU decision on the boundaries of law and religion in the context of workplace discrimination and accommodation. First, this Note will highlight relevant international law doctrines that govern religious freedom and expression, specifically Article 9 of the European Convention on Human Rights. Second, this Note will analyze the European Court's decision in more detail by describing the factual scenario giving rise to the claims and by assessing the Court's rationale. Third, this Note will compare this decision with a factually similar United States Supreme Court case, Abercrombie & Fitch v. EEOC. Lastly, this Note will argue that this CJEU decision is contrary to the spirit and purpose of the European Convention on Human Rights because it unduly restricts one's freedom of conscience, thought, and religious expression.

II. PRINCIPLES OF AUTONOMY IN THE ECHR

A proper evaluation of the parameters of Article 9 of the ECHR requires a foundational understanding of the Convention's purpose and founding principles. This evaluation also necessitates defining the relationship between human rights and religious freedoms in the context of adjudication. Some scholars have argued that the principles of human rights law are inherently secular in nature, and thus automatically conflict with notions of religious freedom.³⁰ As historian Yehoshua Ariell observed, "[T]he development of the doctrine of human rights is [inseverable to] the process of seculari[z]ation of Western society."³¹ Secularism has been defined as a philosophy that obliges the state to refrain from endorsing or imposing any established beliefs.³² The ECtHR has likewise adopted a complementary view that states serve "neutral and impartial" roles and cannot assess the legitimacy of religious beliefs or the way those beliefs are expressed.³³

In Europe, there are three courts that adjudicate religious freedom claims: the International Court of Justice (ICJ), the Court of Justice of the European Union (CJEU), and the European Court of Human Rights (ECtHR), also known as the European Court.³⁴ The ICJ is the principal judicial organ of the United Nations.³⁵ Because only states may bring an action in this court, the ICJ provides limited relief for individuals seeking to protect religious freedoms.³⁶ The CJEU, located in Luxembourg, serves as the principal judicial organ of the European Community and governs rights contained in the

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European Union Charter on Fundamental Rights.³⁷ Article 10 of the Charter contains a provision that concerns freedom of thought, conscience, and religion.³⁸ Despite these provisional protections, the CJEU rarely delivers a judgment on the topic of freedom of religion.³⁹ Lastly, the ECtHR is a supra-national body that adjudicates claims arising under the European Convention on Human Rights and Fundamental Freedoms (ECHR) brought by individuals or member-states.⁴⁰ The ECHR is an international treaty under which the member-states of the Council of Europe promise to secure fundamental civil and political rights of their own citizens and persons within their jurisdiction.⁴¹ Of these tribunals, individuals with religion-based claims generally file petitions with the ECtHR and allege Article 9 violations of the ECHR, which guarantees freedom of thought, conscience and religion.⁴²

Admittedly, the European Court adjudicates relatively few religion cases compared to its vast caseload.⁴³ From 1959 to 2009, the European Court found a total of thirty religion violations whereas it found approximately 4008 violations concerning the fairness and length of proceedings.⁴⁴ Nevertheless, whenever the Court finds a violation of the ECHR, it delivers a...