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Religious clothing and symbols in employment

December 14th 2017

Commissioned by the European Commission and authored by the European network of legal experts in gender equality and non-discrimination, the report analyses the EU and Council of Europe legal frameworks on freedom of religion and non-discrimination and provides a comprehensive overview of EU Member State legislation and case law on the wearing of religious clothing and symbols in both public and private employment.The report is based on the professional assessment of 27 national non-discrimination experts of the European network of legal experts in gender equality and non-discrimination, and covers all EU Member States, with the exception of Malta.

Background of Report

Protected by the Article 10 of the Charter of Fundamental Rights and Article 9 ECHR, the fundamental human right to freedom of religion has been challenged. Prohibited by the Employment Equality Directive and the fundamental human right to non-discrimination (Article 21 EUCFR and Article 14 ECHR/Protocol 12 to the ECHR), the discrimination on the grounds of religion or belief and the issue of the wearing of religious clothing or symbols has arisen in case laws or debates in a considerable number of EU Member States.

Some of the EU countries have national, regional and/or local legal prohibitions relating to the wearing of (some forms of) religious clothing and symbols at work in public and/or private employment, in other areas or even in all public spaces. Until recently, the CJEU had not given any judgments on religion or belief discrimination, but, on 14 March 2017, its first two judgments in this area came out. Both cases concerned Muslim women who wanted to wear a Muslim headscarf or hijab to work and who were dismissed when they refused to take these off.

Outline of Report

The report starts with an exploration of definitions of the terms: religion; belief; manifestations of religion or belief; and, religious clothing and religious symbols through the CJEU and ECtHR case laws.

Then, the provisions of the Employment Equality Directive on direct discrimination, indirect discrimination, harassment, instruction to discriminate and victimisation are examined together with the concept of ‘genuine occupational requirements’ as provided for in Article 4(1) and (2) of the Directive in light with the Achbita v G4S and Bougnaoui v Micropole cases.

Finally, they analysed the national law in the 28 EU Member States and their specific legislation on the wearing of religious clothing in public and private employment. The case law shows that the bans are most often seen as indirectly discriminatory and, where this is the case, the issue of justification plays an important role.

Written by:
Commissioned by the European Commission and authored by Erica Howard of Middlesex University.

Taken from the European network of legal experts in gender equality and non-discrimination website