Abstract
This article explores the complex debate surrounding healthcare providers seeking to express their religious beliefs through the wearing of religious attire considering critical legal, ethical, and practical aspects. Drawing insights from the jurisprudence of the European Court of Human Rights and European Court of Justice, it sheds light on the implications for healthcare settings. The study highlights the sensitivity of the healthcare context, where specific arguments surface, such as the debated significance of religious neutrality given the vulnerability of patients and concerns about health and safety. Difficulties may arise when patients feel discomfort when treated by visibly religious healthcare providers. However, patients’ preferences regarding the religious neutrality of healthcare providers cannot be generalised, especially when considering the needs of certain minoritised communities. Furthermore, questions can be raised about the admissibility of potentially accommodating prejudice through prohibitions on religious dress. The article further examines hygiene and safety arguments used by healthcare institutions to restrict religious attire, arguing that while health and safety standards are crucial, scientific support for outright bans is limited, especially considering the possibility of reasonable adjustments. The central theme is the necessity for balanced considerations while upholding religious freedom and prioritising patient care, with particular emphasis going on the idea that the needs of patients cannot be generalised.
Keywords
INTRODUCTION
Healthcare is intimately connected to individuals’ well-being and physical integrity, and requires trust and collaboration between healthcare provider and patient. The increasing religious and cultural diversity in Europe is posing some challenges in the context of healthcare, such as language barriers, different approaches to information disclosure and decision-making, and requests for religiously motivated interventions. These challenges are usually addressed in terms of the patient's rights and perspectives. Nevertheless, it is equally crucial to consider the perspectives and rights of healthcare providers in the light of cultural and religious diversity. This article will focus on healthcare providers who wish to express their religious beliefs by wearing religious attire.
This contribution distinguishes itself from the literature on the restriction of religious freedom in employment through its focus on the healthcare context, 1 which brings specific questions to the table that are not applicable to just any work environment. First, the healthcare setting emphasises the patient-healthcare provider relationship, where trust significantly impacts the quality of care. The level of trust will in large part depend on the patient's perception, and the question arises how that perception is impacted when treated by a visibly religious provider. As compared to retail customers, patients are in a more vulnerable position, setting apart the dynamics involved. Second, concerns regarding hygiene and safety are context-specific in healthcare. Institutions prioritise health and safety, which may lead to restrictions on certain types of attire, such as jewellery, headgear, or loose hanging clothing, which could be of a religious nature. However, this reasoning could potentially be exploited to justify categorical bans on religious dress in absence of genuine health or safety concerns. 2 Third, the distinction between public and private health institutions carries implications. In public institutions, healthcare providers can be considered State actors, potentially required to adhere to policies of religious neutrality. However, also in private institutions, the freedom of religious expression can be constrained by the employer's neutrality policies. Moreover, many European healthcare institutions have religious origins or an ethos, 3 which might influence the balancing of employees’ religious freedoms, especially when the employee's religion differs from the religious ethos of the institution.
Both the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU) have addressed prohibitions of religious attire in the workplace. In this jurisprudence the principle of religious neutrality and the employer's business image have almost consistently been given precedence over the employee's freedom of religion. However, recent cases such as IX v. WABE eV and MH Müller Handels GmbH v. MJ, along with LF v. SCRL 4 , indicated a potential shift in the CJEU's approach. While the CJEU has subjected private company policies on religious neutrality to more stringent scrutiny, it has shown deference for such policies in public employment in its latest ruling in OP v. Commune d’Ans. 5 This article will examine the legal basis invoked to prohibit religious attire in public and private healthcare institutions, and how these bans are balanced against the right to freedom of religion in the light of the relevant case law of the ECtHR and the CJEU. Additionally, the arguments accepted by these Courts to justify prohibitions on religious dress will be applied to the healthcare setting and subjected to critical analysis.
RESTRICTING THE WEARING OF RELIGIOUS ATTIRE IN EMPLOYMENT: THE CASE LAW OF THE EUROPEAN COURTS
To understand the application of the right to religious freedom and non-discrimination to the case of healthcare providers seeking to wear religious attire, it is essential to examine the jurisprudence of the ECtHR and the CJEU concerning the right to manifestation of religion through religious attire in employment. 6 For the CJEU this entails a focus on the recent cases of OP v. Commune d’Ans, LF v. SCRL, and WABE and MH Müller Handel, that refine the principles laid down in the cases of Achbita 7 and Bougnaoui 8 . For the ECtHR, the main analysis will be limited to the cases of Eweida 9 , and Ebrahimian 10 , but will incorporate references to additional jurisprudence to foster a more comprehensive understanding of the legal landscape.
The ECtHR and the right to freedom of religion
Whereas the right to freedom of private thought, conscience, and religion enjoys absolute protection under Article 9 (1) of the European Convention on Human Rights, its manifestations can be subjected to limitations. 11 Article 9 (2) specifies that these limitations must be prescribed by law, pursue a legitimate aim, and be considered necessary in a democratic society, requiring any restriction to be proportionate. In the balancing act of Article 9, the margin of appreciation (MoA) has come to play a crucial role. 12 The MoA is based on the idea that each society is entitled to a degree of flexibility in resolving conflicts between individual rights and national interests or when navigating different moral beliefs. 13 When ruling on the right to freedom of religion the ECtHR is known to apply a wide MoA, reflecting the lack of consensus in Europe about how freedom of religion cases should be handled. 14 In the case of Kokkinakis, the ECtHR emphasises that with regard to Article 9 ‘a certain MoA is to be left to the Contracting States in assessing the existence and extent of the necessity of an interference.’ 15 A judiciously applied MoA can be both justified and welcomed, as it recognises that domestic courts may possess a better understanding of the nuanced aspects of a particular dispute. 16 However, criticism has been directed at the ECtHR for its application of the MoA in cases involving religious neutrality. 17 A display of restraint by the ECtHR has been noted in these cases that does not correspond to a measured MoA, but is more akin to an absolute judicial retreat. 18
It is important to note that most of the case law related to religious dress concerns the Islamic headscarf, and that to date, only in one case was the prohibition of wearing it deemed a violation of religious freedom. 19 In the case of Dahlab v. Switzerland, for example, a Muslim elementary schoolteacher was prohibited from wearing a headscarf while teaching. 20 Invoking the MoA doctrine, the Court concluded that the school's dress code policy was necessary and proportionate, rejecting her claim of a violation of Article 9. The Court acknowledged the challenges in assessing the impact of a ‘powerful external symbol’ such as a headscarf on the religious freedom of very young children. However, it expressed concerns about its potential proselytising effect, particularly considering the teacher's role as a representative of the State. Additionally, the Court found that the headscarf ‘appear[ed] to be imposed on women by a precept which is laid down in the Koran and which, as the Federal Court noted, is hard to square with the principle of gender equality.’ It was ‘therefore […] difficult to reconcile the wearing of an Islamic headscarf with the message of tolerance, respect for others and, above all, equality and non-discrimination that all teachers in a democratic society must convey to their pupils.’ 21 The case of Dahlab was the first of its kind in a series of decisions concerning the headscarf. 22 In educational contexts the vulnerability of the student is considered paramount, and the headscarf is presumed to have a proselytising effect. Considering the concept of vulnerability, one may argue for extending the jurisprudence surrounding education to the healthcare context, as patients are also considered as especially vulnerable. However, one could argue that the case of healthcare providers differs from teachers because their function is inherently different. According to the ECtHR, the conduct of teachers may have considerable influence on their pupils as they are expected to serve as role models. 23 The Court recognised that, depending on the age of the pupils and the hierarchical nature of the teacher-student relationship, pupils can be particularly receptive to outwards symbols, which can justify the expectation that teachers, as representatives of the State, must embody the State's ideal of neutrality. 24 This is an assumption that arguably cannot be applied to healthcare providers and their patients. While patients are indeed a vulnerable group, the assertion that religious symbols, in the absence of proselytism or other specific circumstances, 25 could infringe upon their rights and freedoms, attributes a very important, and perhaps even exaggerated, weight to religious symbols. 26
However, the idea that religious symbols inherently possess a proselytist effect can be found in numerous legal cases concerning the headscarf, even when the applicants do not hold an example function or pose a risk of influencing a vulnerable group. 27 In the case of Leyla Şahin v. Turkey, a Muslim medical student at Istanbul University faced restrictions on taking certain courses and exams due to her wearing of a headscarf, which violated State regulations. 28 In response to disciplinary measures taken by the university, she filed an Article 9 claim. The Court sided with Turkey, granting a wide MoA to the country's constitutional and cultural values concerning gender equality and State secularism, deeming the headscarf worn by the student a potent symbol capable of infringing on the rights and freedoms of fellow students. Unsurprisingly this reasoning has faced substantial criticism from scholars, who argue that it reflects insufficient scrutiny of the government's arguments, lacks proportionality, extends a questionably wide MoA and perpetuates harmful Orientalist ideas by endorsing the government's interpretation of the headscarf as a symbol of political, extremist Islam, and women's subjugation. 29 The Orientalist view is particularly evident when the Court reiterated its view from the case of Dahlab, suggesting that the headscarf is ‘imposed on women by a religious precept […] hard to reconcile with the principle of gender equality,’ and that it ‘might have some kind of proselytising effect.’ 30 In the absence of supporting evidence, Gibson points out such a position borders on the absurd, seemingly a product of fear rather than judgement. 31 Judge Tulkens provides a strong dissenting opinion on the case, uncovering numerous flaws in the judgment. While an in-depth examination of Judge Tulkens’ analysis falls beyond the scope of this contribution, one citation worth noting is, ‘Only indisputable facts and reasons whose legitimacy is beyond doubt – not mere worries or fears – are capable of […] justifying interference with a right guaranteed by the Convention.’ 32
In the case of Eweida and others v. the United Kingdom, the ECtHR addressed four joined complaints concerning religious freedom in the workplace, two of them concerning religious dress. 33 Eweida, a Coptic Christian, was prohibited by British Airways from wearing a crucifix necklace as it was deemed to conflict with the company's dress code and corporate image. 34 Chaplin, a Christian nurse, was prohibited from wearing a crucifix necklace due to health and safety concerns. 35 Both applicants argued that their rights under Article 9 had been violated. The ECtHR ruled in favour of Eweida, asserting that her right to manifest her religion was not adequately balanced with the employer's dress code policy. 36 The Court emphasised the importance of religious freedom within a diverse society and as an essential aspect of an individual's identity. It also noted the lack of evidence that wearing religious symbols had an adverse effect on the company's image. 37 What is so striking about Eweida compared to subsequent cases on religious dress is its emphasis on the vital importance of religious expression. The ECtHR explicitly articulated the need to balance the employee's right to express their religion and the employer's concerns for its corporate image, emphasising that the latter cannot entirely disregard the former. 38 In contrast, the ECtHR upheld the restriction on Chaplin's crucifix, considering that decisions on health and safety fall within the discretion of local authorities, granting a wide MoA. 39 The ECtHR also stressed that the restriction aimed to protect the health and safety of patients and healthcare providers, rather than constituting a blanket ban on religious attire. This case underscored the acceptance of health and safety concerns as valid reasons for limiting religious attire. It is crucial, however, to distinguish between dress codes that restrict the wearing of religious attire due to legitimate health or safety concerns, and those that use this justification as a pretence to impose a complete ban.
In the similar case of Ebrahimian v. France, the ECtHR addressed whether public hospitals could restrict their staff from wearing conspicuous religious symbols on the grounds of religious neutrality. 40 Ebrahimian, a social assistant, was informed that her contract would not be renewed for refusing to remove her headscarf, following complaints from patients and colleagues. 41 The French government argued that the aim was to protect the rights and freedoms of others and to ensure equal treatment without religious discrimination. Considering France's context of strict secularism and the hospital setting, the ECtHR granted a wide MoA. 42 Although Ebrahimian had not engaged in proselytism or misconduct, her headscarf was described as an ‘ostentatious manifestation of religion’ incompatible with the required neutral environment. 43 The ECtHR concluded that religious neutrality could justify restrictions on religious dress in public health facilities, citing the presence of vulnerable individuals whose rights and freedoms must be protected. However, the ECtHR did not expand on this argument, nor did it clarify how the wearing of religious attire might infringe on patients’ rights. 44 Furthermore, the ECtHR accepted the argument that wearing religious dress could complicate interactions with patients, despite the absence of evidence of acts of pressure, provocation, or proselytism. 45 Brems raises the important question of whether it should not be imperative to examine if these difficulties arose from Ebrahimian's behaviour, or if they should instead be more appropriately labelled as Islamophobic reactions. 46 This case has significant implications as it allows abstract principles of secularism and neutrality to justify bans without specifying them. 47 Initially, this decision appears contradictory to Eweida v. the UK, which emphasised the need for evidence of an actual infringement upon the rights of others. 48 However, several arguments may account for this. First, the differing national context of strict religious secularism in France, as opposed to a more inclusive form of neutrality present in the UK. 49 Second, in Eweida the ECtHR dealt with a private employer, whereas in Ebrahimian the hospital was a public institution. Third, the Eweida case indicated that the employers had made reasonable accommodations for wearing other religious symbols, which might allow more leeway for religious expression in that work environment as compared to in Ebrahimian's case. 50 Fourth, the work environment was significantly different as Ebrahimian was employed at a hospital where she was in contact with vulnerable patients. Fifth and last, the nature of the religious symbols that were considered, namely a headscarf and a crucifix necklace might have played a role. As seen in the case of Dahlab 51 , the ECtHR considers the headscarf to be a ‘powerful external symbol’, which could explain a difference in approach as opposed to ‘discreet’ religious symbols. 52
EU law and the principle of non-discrimination based on religion
At the level of the European Union, a distinct legal framework is applied by the CJEU for cases involving religious dress in employment. While the ECtHR generally applies its human rights framework as outlined in the Convention, assessing whether infringements on the right to freedom of religion are justified, the CJEU applies its non-discrimination framework applicable to both public and private employment. Article 10(1) of the Charter of Fundamental Rights corresponds to the right to religious freedom guaranteed in Article 9 of the Convention, 53 and has the same meaning and scope. 54 In the context of employment, the EU Employment Equality Directive 2000/78/EC serves as a general framework for equal treatment, 55 laying down general minimum standards applicable to the public and private sector in all types of employment. 56 Direct discrimination, as described in Article 2(2)(a), occurs when one person is treated less favourably than another in a comparable situation. Such treatment is only permissible under Articles 4(1) and 4(2), in cases of genuine and determining occupational requirements or occupational activities within churches and other organisations whose ethos is based on religion or belief. Indirect discrimination on the other hand, is described by Article 2(2)(b) as ‘when an apparently neutral provision, criterion or practice would put persons having a particular religion or belief […] at a particular disadvantage compared with other persons’. This disparate treatment is permissible when justified by a legitimate aim and deemed appropriate and necessary to achieve that aim. While the essential structure of non-discrimination law is largely uniform in Union law and the law of the Convention, the focus in the ECtHR's case law on religious dress is on whether restrictions are violating Article 9 of the Convention, oftentimes without – or with minimal – further analysis of the non-discrimination principle laid down in Article 14. 57 The difference with a non-discrimination analysis is that the latter entails comparison: it is not only the absolute restriction that is relevant, but also the relative restriction. When a relatively minor absolute restriction disproportionately affects a select group, the relative disadvantage is greater, which in turn demands a weightier justification. Individual religious freedom can hardly be assessed in isolation, and this is where the non-discrimination framework seems to provide a more nuanced analysis, and perhaps stronger protection of religious freedom. 58
In 2017, the CJEU issued its first judgments on discrimination based on religion or belief under Directive 2000/78. 59 The cases of Achbita and Bougnaoui both concerned Muslim women seeking to wear headscarves at work. 60 In the first case, Achbita had her employment terminated by her employer for her firm intention to wear the headscarf at work. The CJEU found that the prohibition in the employment regulations applied uniformly to all manifestations of any belief, therefore it did not directly discriminate based on religion or belief. 61 This stance appears to contradict the CJEU's findings in the case of CHEZ, where direct discrimination was deemed to occur when prejudice against a group led to the adoption of a rule, even if that rule also affects others. 62 In Achbita, it was evident that the company's policy explicitly targeted religion – particularly the headscarf – especially since it was introduced only after Achbita had expressed her intention to wear it. 63 Nevertheless, the CJEU decided to follow the course of indirect discrimination, which necessitates a justification test. The CJEU determined that the wish to display a policy of political, philosophical, or religious neutrality constitutes a legitimate aim, and that an employer's desire to project an image of neutrality towards customers relates to the freedom to conduct a business. 64 Accordingly, the employer's neutrality policy can only involve customer-facing employees. 65 In the second case, Bougnaoui was instructed by her employer to remove her headscarf when meeting clients following a customer's complaint. She refused to comply and was subsequently dismissed by the company. 66 The CJEU addressed the question of whether a customer's preference to no longer have services provided by an employee wearing a headscarf constitutes a genuine and determining occupational requirement, exempting it from the prohibition of direct discrimination. 67 The CJEU responded negatively, ruling that the employer's willingness to take account of customer preferences cannot be considered a genuine and determining occupational requirement. 68 However, this raises questions about the compatibility with the conclusion in Achbita, where it was decided that the freedom of religion of the employee can be restricted in favour of the employer's desire to maintain a policy of neutrality. 69 As Peers observed, ‘There is a thin line between saying that employee headscarves can’t be banned just because customers ask for it on the one hand and allowing employers to ban such clothing in effect due to anticipation of customer reaction’. 70
In the 2021 case of WABE and Müller, comprising two joined cases, the CJEU reaffirmed its rulings in Achbita 71 and Bougnaoui 72 on the prohibition of religious dress worn by private employees, while also introducing a nuance to its approach. 73 IX and MJ started wearing the headscarf after being employed by WABE and Müller for some time. In IX's case, her employer, a day-care centre operator, instructed her to remove her headscarf during work based on an internal policy aimed at maintaining ‘political, philosophical and religious neutrality’ in interactions with children and their parents. Similarly, MJ, an employee at a drugstore, was instructed to appear at work without displaying ‘large, conspicuous signs of political, philosophical or religious beliefs’. While in Achbita and Bougnaoui, the CJEU granted considerable discretion to employers seeking to enforce a neutrality policy, this latitude appears to be curtailed in the WABE and Müller case. 74 Initially, the CJEU affirmed that internal rules prohibiting the display of visible signs of political, philosophical, or religious beliefs in the workplace do not constitute direct discrimination as long as they are applied in a general, non-differentiated manner to all employees. 75 However, the CJEU held that the employer's desire to establish a neutrality policy alone is insufficient to justify an indirect differentiation based on religion. The employer must also demonstrate a genuine need for that policy. 76 This primarily involves considering the rights and legitimate expectations of customers or users and the adverse effects the employer would face in the absence of that policy, considering the nature or context of their activities. Second, the policy must be consistently and systematically pursued, and third, the prohibition should be limited to what is strictly necessary. 77 This approach underscores the importance of a nuanced, evidence-based assessment when considering restrictions on religious attire in the workplace. This approach was further confirmed in the 2022 case of L.F. v. SCRL, emphasising the promotion of tolerance, respect, and the acceptance of diversity, while discouraging the misuse of neutrality policies. 78
The Court thus set a higher threshold for private employers aiming to restrict employees’ religious freedom, underlining the need for a balanced approach that accommodates both religious freedom and legitimate business interests, rather than relying solely on the principle of neutrality or general company policies. For private health institutions, this might imply that they must prove that the religious attire worn by staff genuinely harms their image or impacts patient care when this argument is invoked. For instance, it may be argued that prohibiting religious dress could be necessary to prevent patients from getting the impression that they are not being treated equally, or that certain treatments are not up for discussion because of their sensitive nature in some religions. 79 It remains to be seen to what extent this genuine need will actually have to be proven to the CJEU, or whether mere speculation or expectations would suffice. 80 Additionally, in the case of WABE and Müller, the CJEU ruled that selectively prohibiting only prominent religious signs would disproportionately affect people of certain faiths, constituting direct discrimination. 81
It is worth noting that the previous CJEU rulings all concerned private undertakings, and that the CJEU only recently had to rule on a prohibition on religious dress by a public employer in the case of OP v. Commune d’Ans. 82 In this case, the CJEU determined that a regulation upheld by a Belgian municipality, prohibiting the display of any religious symbols in the municipal workplace, could be considered justifiable in the interest of maintaining an ‘entirely neutral administrative environment’. 83 Although this measure primarily impacted Muslim women seeking to wear the headscarf, resulting in their exclusion from municipal employment, the CJEU deemed the preservation of religious neutrality more significant. As long as the neutrality policy was enforced uniformly and strictly, there would be no indirect discrimination, allowing Member States to independently determine whether banning all religious symbols in public or other workplaces would amount to prohibited discrimination. 84 This ruling further reinforces the principle of judicial restraint of the European Courts regarding religious neutrality, referring to the Member State's MoA in establishing public service neutrality. 85 Further, it draws criticism similar to that directed at Achbita, as it seems incompatible with the CJEU's judgment in the case of CHEZ that the prohibition was classified as indirect discrimination, because it was applicable to all religious signs, not only to headscarves. 86 In Ans the municipality formulated its neutrality rules after the applicant requested permission to wear the headscarf. The specific facts of the case, particularly the existing practice of tolerating ‘discreet’ Christian signs, strongly suggests that the rules were primarily intended to exclude headscarves. If considered an example of direct discrimination, the rule would be prohibited by discrimination law, and there would be no consideration of the neutrality argument. However, by choosing the path of indirect discrimination, the CJEU accepted neutrality as a justification for the unequal effect the neutrality rule caused. 87 The progress made in WABE and Müller, where a genuine need was required to justify neutrality policies and neutrality was no longer sufficient as a justification in itself, appears to have already been forgotten in the case of Ans. It is plausible, however, that when a public employer invokes the religious neutrality argument, the CJEU perceives less room to question such a policy. However, as Davies points out, ‘Nevertheless, the EU has in fact adopted equality legislation, which precludes direct discrimination, and requires Member States to justify measures which exclude or disadvantage particular groups. That justification process requires them to show the measures actually meet some genuine need’. 88 In other words: if equality legislation is adopted, measures that jeopardise equality should undergo careful scrutiny.
It should also be mentioned that this list of case law will likely be expanded by the pending ECtHR case of Türk v. Germany, where a Muslim nurse employed by a Protestant hospital was prohibited from wearing a headscarf at work. 89 This case could provide insights into the importance that should be attributed to the religious ethos of health institutions when restricting religious expression.
APPLICATION TO THE HEALTHCARE SETTING
The following section will critically examine the three main arguments that have been used before the European Courts in the context of healthcare settings. The significance of healthcare services within society and the vulnerable position of patients who make use of them lend the healthcare sector a heightened sensitivity that makes it stand out from other workplaces.
Health institutions’ identity: Neutrality or religious ethos
The ‘neutral’ health institution
In Ebrahimian, the ECtHR acknowledged the necessity of maintaining religious neutrality, particularly in contexts where users of public services were vulnerable, without asserting whether Ebrahimian's behaviour was infringing upon the rights and freedoms of the patients. 90 While the national context of France's strict secularism played a role in the Court's decision, it does not seem unlikely that other health institutions across Europe could successfully invoke religious neutrality to justify prohibitions as well. 91 Across its jurisprudence, the ECtHR invariably refers to the State's wide MoA whenever confronted with questions on restrictions on religious freedom, and, in each case, 92 principles of neutrality or secularism were deemed sufficient to support the necessity of the restriction. 93 The reasoning style of the European Courts regarding religious neutrality has also been criticised for lacking a clear purpose and failing to effectively tackle or rectify various discriminatory practices. 94 In the case of Achbita, 95 for example, the CJEU concluded that there had been no direct discrimination, because the internal rule of the company was applied to all employees. This reasoning, however, is limited to the application of the internal rule and loses sight of its impact: imposing restrictions on religious attire disproportionately impacts certain religious groups over others. Islam, Judaism and Sikhism mandate, according to many followers, the wearing of specific attire. Christianity, on the other hand, does not, and the symbols that some Christians do choose to wear are rather discreet. Consequently, these prohibitions hurt the minority or non-indigenous religions in Europe, while leaving the majority unaffected. 96 Further, such policies disproportionately affect Muslim women specifically, as the headscarf is often targeted by such bans. 97 This leaves many visibly religious individuals to choose between their job or their religious identity. Alternatively, if the company can accommodate, employees may agree to be relocated to the ‘back office’, which would prevent any direct contact with customers. However, public employers, following the latest ruling of OP v. Commune d’Ans, may not necessarily be obligated to offer this option, as neutrality policies may be extended to the ‘back office’ as well, according to the CJEU. 98 For most healthcare providers, such relocation would hardly make a difference, as the nature of their job requires them to be in close contact with patients. This excludes specific groups from the profession altogether, especially in countries that have stricter rules in place regarding secularism, such as France and Belgium.
In the cases of WABE and Müller, the CJEU underscored the importance of evidence-based neutrality policies, meaning that the employer needs to prove a genuine need for it. 99 According to the CJEU, this also means considering the rights and legitimate expectations of customers or users. In the healthcare context, one could argue there are specific justifications that may support religious neutrality. To ensure that patients do not feel treated differently by their healthcare providers, maintaining a neutral demeanour might be necessary, as accepted by the ECtHR in Ebrahimian. 100 Individuals admitted to healthcare facilities must, after all, have confidence that the care they receive is not influenced by personal characteristics of the healthcare provider, such as religion. Health institutions may seek to foster public trust by adopting a policy of neutrality. In this regard, it is important to point out the distinction between inclusive and exclusive neutrality: inclusive neutrality seeks to ensure equal treatment by avoiding discriminatory acts, allowing for the wearing of religious symbols; exclusive neutrality, on the other hand, pursues a form of equality that addresses impressions and perceptions beyond acts and their consequences. It seeks to eliminate any appearance of bias, including religious symbols. 101 Consequently, when healthcare providers are prevented from wearing religious attire in the pursuit of exclusive neutrality, this is to avoid the impression that patients would not be treated equally.
Health institutions with a religious ethos
However, it should not be automatically assumed that health institutions would compromise their own secular character when healthcare providers wear religious attire. It could be argued that the neutrality of the institution is only threatened when it endorses a particular religion itself. 102 In reality, not all healthcare institutions strive to project a neutral image; many are rooted in religious tradition or uphold a religious ethos. 103 It is generally accepted that for roles of a religious nature it may be proportionate to allow some level of religious discrimination. 104 This allows groups to maintain a consistent religious identity, without being obliged to employ individuals of different religions or lifestyles. Nevertheless, any exception to the general non-discrimination principle must be proportionate. Given that a significant number of health institutions in Europe have a religious identity, insisting on employing only those of the same conviction would result in the exclusion of many individuals. While it might be proportionate to allow religious discrimination in appointing a church administrator, it might be unreasonable to expect the same compliance from a physician. As Vickers argues, ‘where the group interacts with the rest of society, such as by providing services to the public, they can be expected to conform to the norms of the rest of society in terms of respect for the dignity and autonomy of others’. 105
Article 4(2) of Directive 2000/78 outlines two exceptions relevant to religious attire for employees of religiously oriented organisations. The first exception relates to an occupational requirement, which allows organisations with a religious ethos to consider an individual's religion or belief as a genuine, legitimate, and justified occupational requirement if the nature of the job or the context of the activities necessitates such consideration. 106 In the cases of Egenberger, 107 as well as IR v. JQ, 108 the CJEU ruled that a balancing exercise needs to be taken between the right of autonomy of the religious organisation on the one hand, and the rights of employees not to be discriminated against on grounds of religion on the other. 109 In this balancing exercise it must be ascertained whether the requirement was indeed ‘genuine, legitimate and justified’, with the term ‘genuine’ implying that the requirement is necessary to express the organisation's ethos, ‘legitimate’ signifying that it serves job-related purposes, and ‘justified’ requiring the presence of a probable and substantial risk to the organisation's ethos or autonomy. Additionally, the requirement must comply with the principle of proportionality. 110 While it is for the national courts to verify these requirements, the CJEU added in the case of IR v. JQ that it did not believe JQ's adherence to the Catholic Church's teaching on marriage was necessary for the promotion of the health institution's Catholic ethos, as JQ's role in the hospital was limited to giving medical advice and care, and managing the internal medicine department. 111 Therefore, it did not appear to be a genuine occupational requirement for this job. Whether this same logic can be transposed to a healthcare provider seeking to wear religious dress different than that of the institution's ethos remains an area in need of clarification, especially given the visibility of it. The second part of Article 4(2) allows organisations with a religious ethos to require employees to align with their ethos, provided this complies with the Directive. This might include prohibitions of religious attire other than those of the organisation's faith, although the CJEU has not ruled specifically on this matter. Questions of interpretation of these exceptions remain, such as whether, for example, a Catholic organisation can legitimately refuse to employ a woman wearing an Islamic headscarf. The role of the work environment's context and the specific job activities in this part of Article 4(2) remain uncertain. 112 Although beyond the scope of this article, an important question to point out is whether a rather vague concept such as religious neutrality could potentially carry more weight in justifying prohibitions of religious attire than the concrete religious ethos of an institution. In a similar sense, albeit within a separate legal framework, the forthcoming decision of the ECtHR on the pending case of Türk v. Germany could offer insights into the questions surrounding prohibitions on religious attire in health institutions with a religious ethos.
The rights and freedoms of others: Accommodating prejudice?
The ‘neutral’ healthcare provider
The rights and freedoms of patients are closely intertwined with the rationale to uphold religious neutrality in the healthcare setting. In this context, the patient's vulnerable position and their expectation of fair treatment can serve as an argument in favour of religious neutrality. In the case of Ebrahimian, the abrupt prohibition of religious attire was prompted by complaints from both patients and colleagues. To safeguard the rights and freedoms of others, especially considering the vulnerability of patients, the ECtHR accepted this argument without requiring evidence of disruptions in the patient-healthcare provider relationship that were attributable to Ebrahimian's conduct. 113 In contrast, in the case of Bougnaoui, the CJEU did not deem customers’ complaints as valid justification for a ban on religious attire. 114 As Advocate-General Sharpston argues in her opinion on the case, ‘I draw attention to the insidiousness of the argument, “but we need to do X because otherwise our customers won’t like it”. Where the customer's attitude may itself be indicative of prejudice based on one of the “prohibited factors”, such as religion, it seems to me particularly dangerous to excuse the employer from compliance with an equal treatment requirement in order to pander to that prejudice’. 115 However, the different contexts of these cases should be acknowledged, as the nature of engagement with customers differs from those involving patients. 116 According to the CJEU, in the cases of WABE and Müller, the expectations of customers could justify the need for a neutral business image, which might be relevant for the healthcare context when considering the patient's perceptions and preferences regarding religious attire. 117 Trust plays a crucial role in the patient-provider relationship, and the patient's perception of the healthcare provider may be important in this regard. For instance, patients seem to judge the professionalism and trustworthiness of practitioners based on the clothes they wear and equate formal attire with greater trust and reliability. 118 Can religious dress diminish professionalism in the eyes of the patient? Or more broadly, are personal characteristics of physicians relevant to their professional roles?
Uncertainty persists concerning the relevance of individual characteristics to the professional role of the healthcare provider. One argument supporting religious neutrality in healthcare posits that providers should set aside their personal characteristics when fulfilling their professional duties. 119 This perspective portrays the practice of medicine as primarily a bureaucratic and technological venture, where the physician is perceived as an interchangeable and almost anonymous functionary. Consequently, a healthcare provider's personal characteristics may be viewed as a potential threat to efficient and fair delivery of healthcare services. 120 However, not all agree with this view. Concealing religious convictions, and therefore resisting visible religious concordance based on concerns of fairness or efficiency, 121 prioritises a vision of medicine that overlooks those groups of patients that can benefit from seeing their minoritised identity reflected in healthcare providers. 122 Recognising that religious concordance can in certain situations improve medical care underscores the multifaceted nature of medicine, which extends beyond bureaucratic or technological aspects. Arguments grounded in this perspective fail to capture the broader reality that each patient and physician is a unique individual with a multifaceted identity. 123 While the roles of patient and provider come with certain obligations, they should not necessitate the concealment of one's religious identity. Nevertheless, it is inevitable that some patients might experience discomfort when encountering (certain) religious symbols during their care, which underscores the complex interplay between individual identity and healthcare practices.
The patient's views as a (questionable) guideline
The question needs to be asked – what exactly about religious dress can infringe on the rights and freedoms of patients? Take for example the headscarf: according to the ECtHR it is ‘difficult to reconcile the wearing of an Islamic headscarf with the message of tolerance, respect for others and […] equality and non-discrimination’. 124 Following this reasoning, the headscarf conveys a message of intolerance, disrespect for others, inequality, and discrimination. Wintemute challenges this by posing the pertinent question of whether the headscarf causes actual harm, or if this discomfort is merely imagined. 125 He concludes that a mere piece of fabric, such as a headscarf, cannot physically cause any direct harm, and the fact that it conceals the wearer's hair, neck or forehead cannot inflict harm on others, because they cannot claim a legitimate interest in seeing these parts of the wearer's body. The indirect impact it allegedly might have on others, or the political message some might read into it, are self-inflicted anxieties or prejudices of the viewer, for which the wearer is not responsible, and which cannot justify non-accommodation, so argues Wintemute. 126 Adapting to these views would come dangerously close to allowing individuals to be judged by the prejudices of others. 127 While this reasoning could be extended to other types of religious attire, there might be something to say about the full-face veil as seen in the burqa or niqab, and how there might be different arguments to prohibit full-face veils in contact with patients. 128 Within a clinical consultation, the healthcare provider wearing a full-face veil could impact the relationship with the patient and may affect the quality of care that the patient experiences, given the importance of verbal and non-verbal communication. 129 It might also be stressful for the patient not being able to easily identify their provider. While patients might not have a legitimate interest in seeing their healthcare provider's hair, understanding the importance of patient's trust and communication, it seems likely that patients could claim a legitimate interest in seeing the face of their provider. 130
Importantly, patients can make a wide range of assumptions based on the physical appearance of their healthcare provider. What if a homosexual patient has concerns that their healthcare provider wearing a headscarf or kippah would treat them differently because the patient perceives their religious doctrine as homophobic? Or what if some patients experience discomfort when discussing medical treatments that touch upon sensitive religious beliefs when engaging with visibly religious providers such as, for example, discussing abortion options with a visibly Catholic healthcare provider? While these reasonings might seem to be more legitimate than outright disliking the religions, the argument that it is objectively justified and rational to assume that someone wearing religious attire is likely to be intolerant towards those with differencing views may be difficult to substantiate.
131
At a minimum, attributing intolerance to individuals based on their religious attire significantly infringes upon their religious freedom and would require substantial empirical evidence to support such claims. As Davies argues, assessing the beliefs implied by religious attire against the backdrop of societal biases is fundamentally irrational and incompatible with reason and law.
132
Furthermore, the discussion on patients’ perceptions can go beyond religious attire. Is it the responsibility of the healthcare provider or health institution to remove all signs of individuality to avoid causing discomfort? It is worth noting that many other characteristics that may not appear neutral to patients cannot be concealed. For instance, in a 1998 Canadian study on patient discrimination against gay, lesbian, and bisexual physicians, 11.8% of the participants indicated that they would refuse to see a queer physician. The reasons provided ranged from doubts about the physician's competence, perceiving them as bizarre or not ‘normal’; patient discomfort; upbringing; and viewing these physicians as a threat to children – to a straightforward dislike of queer individuals.
133
A 2022 survey of over two thousand UK doctors and medical students on their experience of racism in the medical profession revealed that 76% had experienced racism at least once in the workplace in the past two years, with 17% regularly encountering racist incidents.
134
Moreover, 23% reported considering leaving their job because of racial discrimination, and 9% had already left in the past two years. A Black British respondent shared having experienced ‘[u]nnecessary hostility from patients and refusal to see/speak to people of colour, yet having polite conversations with White members of staff.’
135
Another Black British respondent shared: During the pandemic I have had a number of patients on the telephone who have assumed I am White, once we arrange a face to face they are surprised I am the GP they have spoken to on the phone and then chose to no longer see me instead preferring to see my White colleagues. This has been quite a common occurrence.
136
On the necessity of objective proof
When formulating policies that may limit the religious freedom of healthcare providers, it is crucial to consider that the discomfort some patients experience when being treated by someone wearing religious attire might be rooted in prejudice. The law requires more discipline than mere assumptions, and restrictions on religious expression based on the infringement upon the rights and freedoms of others should be based on objective grounds. 137 A legitimate purpose such as the rights and freedoms of patients does not serve as a carte blanche to limit rights. To pass the proportionality test, the policy needs to be proven to be necessary for its aims. When arguing the rights and freedoms of others, it should require empirical evidence. 138 Concerning religious attire in healthcare, there might be situations where prohibitions are necessary to protect the rights and freedoms of others. Think of, for example, a unit of patients with dementia that is being disrupted by tensions and difficulties because some of the patients may become anxious at the sight of certain religious symbols, affecting the quality of care and the operation of the unit. The extent of these disruptions could be empirically proven by the institution, which in turn could potentially prove the necessity of the measure. The difference between accommodating bigotry of patients is that a dementia unit deals with particular vulnerabilities, as dementia can impair a person's inhibitions, leading them to disregard typical social norms of behaviour, with anxiety symptoms being common. 139 However, this reasoning becomes precarious when religion is replaced by any other protected characteristic, such as ethnicity or sexual orientation, which could also invoke strong reactions from patients with dementia.
It comes down to finding the appropriate response to patients’ preferences, whether rooted in prejudice or not. The question emerges: should there be an adaptation to these preferences, urging healthcare providers to conceal their identities to the greatest extent possible, or should a standard of professionalism prevail? One may argue that it would be counterproductive in the light of the principle of religious freedom and non-discrimination to endorse prohibitions on religious attire to accommodate preferences possibly rooted in prejudice, unless when objectively proven to be necessary. Furthermore, it is inconsistent with the goal of preventing discrimination to rank discriminatory grounds, deeming religion as more negotiable compared to others. 140 As expressed by Advocate-General Sharpston, ‘to someone who is an observant member of a faith, religious identity is an integral part of that person's very being’ and that ‘it would be entirely wrong to suppose that, whereas one's sex and skin colour accompany one everywhere, somehow one's religion does not.’ 141 The understanding that religion forms an inseparable part of an individual's identity, and the outward expression of this faith is just as fundamental as the internal right to religion, is crucial. 142 For many believers, wearing religious symbols are not mere choices, but intrinsic aspects of their identity. Prohibiting these religious symbols essentially excludes an entire group of people from the care profession. 143 Effectively considering religion as a part of identity would lead to more weight being given to the importance of being able to manifest this identity at work, and it would certainly hold more weight against patients’ potentially discriminatory requests and complaints. This consideration was missing in the ECtHR's analysis of the case of Ebrahimian, where the infringement of the rights of others was accepted without any evidenced misbehaviour from Ebrahimian. 144 This left the possibility of the prohibition being the result of discriminatory complaints by patients and colleagues open and unquestioned. Furthermore, ‘religious neutrality’ is an ambiguous concept, and its meaning remains heavily contested. 145 The question revolves around whose perspective on neutrality dictates the policies concerning religious attire. It is impossible to generalise the patient's perception: what might be considered unsettling for one patient might be inconsequential for another and even empowering for the next one. Additionally, members of minoritised groups could benefit from identifying with their healthcare providers. 146 Excluding visibly religious individuals from the health profession based on the grounds of a singular understanding of neutrality, contradicts the principles of a pluralistic and democratic society. 147
Health, safety, and reasonable accommodation
Health and safety naturally stand as primary considerations for any health institution, often reflected in dress codes for employees, and sometimes including restrictions on religious dress. 148 However, strict rules on uniforms for healthcare providers do not come without criticism. Dress codes aimed at preventing hospital-acquired infections have been questioned for lacking substantial evidence to support their efficacy. 149 Studies have indicated that the laundering process effectively removes or kills microorganisms on fabric, 150 suggesting limited scientific rationale for prohibiting launderable religious attire. Therefore, it is important to gather more evidence on dress codes to ensure that decisions are based on scientific reasoning, rather than personal assumptions. 151 In this sense, it is imperative to consider the grounds of the objection, the purpose of the specific dress code provision, and the potential for accommodation. 152 Regarding religious attire and hygiene protocols, healthcare institutions adopt varied approaches. While some healthcare institutions entirely prohibit religious dress due to hygiene concerns, other institutions find ways to accommodate. For instance, some institutions enforce regulations on how headscarves should be worn, their laundering specifications, or colour choices, while other institutions go as far as providing headscarves to their staff. 153
This introduces the question of reasonable accommodation. While some EU Member States have embedded rights to reasonable accommodation for religious beliefs or practices in their national legislation, there is no explicit recognition of reasonable accommodation for religious reasons at a European level. 154 However, this right could arguably be derived from existing provisions on anti-discrimination and religious freedom. 155 Within the context of Article 9 of the Convention and Directive 2000/78, the concept of reasonable accommodation could find support in the principle of proportionality. 156 The ECtHR has held that the proportional character of a measure entails that the authorities should choose the least restrictive means among various methods to reach a certain goal. It could be argued that if a provision impairs the religious freedom of certain individuals and if accommodation could prevent such impairment, this latter solution should be favoured as the less restrictive means. 157 While EU law introduced reasonable accommodation solely for disability in Directive 2000/78, the issue of reasonable accommodation for religious beliefs may surface, particularly in cases of indirect discrimination. 158 In a hospital environment, a regulation might prohibit the wearing of any headwear or outside clothing for employees. This seemingly neutral rule disproportionally impacts, for instance, visibly Muslim women or Sikh and Jewish men. While it undoubtedly pursues a legitimate objective, it might not withstand the proportionality and necessity test if the wearing of a clean, tight headscarf, kippah or turban would meet the health and safety requirements.
Nevertheless, the scope of reasonable accommodation is limited. Think of the Chaplin case, where the issue with the crucifix necklace was that it posed a safety hazard by swinging freely. In the same hospital, Sikh providers had been informed that they could not wear a bangle or kirpan, and Muslim providers were given permission to wear close-fitting ‘sports’ headscarves. 159 This illustrates that some religious symbols can indeed align with a hospital's health and safety standards, while others may not, a distinction acknowledged by the ECtHR. Even if Chaplin had had the right to request accommodation from her employer, it is likely that the outcome would have been the same because the work context is crucial in the assessment of reasonableness. 160 Similarly, there are health and safety arguments that would apply for the full-face veil, referring to the burqa or niqab. Health institutions often prohibit ‘loose’ dresses due to the safety hazards they pose. Further, the full-face veil presents difficulties in provider identification, which might cause implications ensuring the security and safety of the patients. As illustrated, there are certainly arguments of health and safety that justify prohibitions on religious dress. It is important, however, that this justification keeps being scrutinised to ensure that it is not misused by employers, and that health and safety measures do not go further than necessary. 161 When considering the general proportionality test, and the potential for reasonable accommodation, the health and safety requirement may not substantiate categorical prohibitions on religious attire.
CONCLUSION
This article aimed to navigate the complex debate surrounding the wearing of religious attire by healthcare providers, examining crucial legal, ethical, and practical aspects. Drawing insights from the analysis of ECtHR and CJEU cases regarding prohibitions of religious attire, this research shed light on the implications for the healthcare setting. It is evident that the healthcare context is a sensitive one where unique considerations apply. The first part of the analysis focused on the argument of religious neutrality, and the potential religious ethos of health institutions. In the case of Ebrahimian, the ECtHR accepted religious neutrality as an argument to justify prohibiting headscarves in French public hospitals, a precedent that may extend to public healthcare institutions across Europe, especially in countries favouring an exclusive form of neutrality. While the CJEU seemed less inclined to accept religious neutrality as an overarching justification for private employers in the cases of WABE and Müller, and L.F. v. SCRL, it appeared to diverge from the evidence-based approach in the case of OP v. Commune d’Ans regarding public employers. This leaves an open question about the level of scrutiny health institutions would need to undergo to establish a genuine need for maintaining a religiously neutral image, and whether its public or private character would play a role in this.
In healthcare, projecting a neutral image could arguably be vital for patients’ trust in equal treatment. In its turn, this raises important questions about patient perceptions. Indeed, the sensitivity of the healthcare setting and the necessary trust in the healthcare provider-patient relationship give an important place to patients’ preferences. Nevertheless, evaluating a healthcare provider's competence solely based on their wearing of religious attire does not align with the ideals of a diverse and pluralistic society. Moreover, it can also be questioned whether concealing religious identities serves all patients’ interests, especially since minoritised groups may find comfort and understanding in identifying with their healthcare provider. This article posits that, instead, the professionalism of the healthcare provider should be assumed unless proven otherwise, 162 and that tolerance should be promoted by healthcare institutions by engaging in dialogue with patients who might feel discomfort with visibly religious healthcare providers. It is also important to reflect on how far the requirements for healthcare providers – or any type of employee – to leave behind one's individuality can or should go. As Advocate-General Sharpston stated, ‘When the employer concludes a contract of employment with an employee, he does not buy that person's soul’. 163
Furthermore, the argument regarding hygiene and safety that can be invoked by healthcare institutions to justify prohibitions on religious attire was examined. To provide qualitative care and to protect patients and healthcare providers, the healthcare context requires strict health and safety standards, which often result in provisions pertaining to dress codes. These dress requirements can entail restrictions on religious dress. The focus of this contribution was on whether these restrictions are scientifically supported or if these arguments are sometimes misused to prohibit religious attire altogether without having to engage in the debate about tolerance and pluralism. It was also touched upon whether accommodation could be possible for certain types of religious dress. The conclusion was that there is little scientific support for an outright ban on all religious signs for reasons of hygiene and safety. Regulations of healthcare institutions demonstrate that there is in fact room for reasonable adjustments, such as allowing Muslim providers to wear close-fitting ‘sports’ headscarves, as mentioned in the case of Chaplin. Therefore, categorical bans based solely on health and safety arguments seem challenging to justify.
The debate surrounding religious attire continues to stir, with healthcare institutions adopting diverse policies ranging from acceptance within a framework of hygiene and safety to severe restrictions. However, it is crucial that careful, balanced, and science-based considerations are made, while upholding religious freedom and prioritising patient care. In this balance the interests of the minoritised patient cannot be forgotten. As we continue to grapple with these complex questions, further research seems necessary – specifically to the presence of such bans in healthcare facilities and the given justifications, and to the experience of healthcare providers as well as patients. In conclusion, the nature of this issue demands ongoing attention, thoughtful deliberation, and a commitment to promoting inclusivity and respect within the diverse European healthcare environments.
Footnotes
Acknowledgments
I would like to express my deepest gratitude to my supervisors Prof. Dr. Kristof Van Assche (University of Antwerp), Prof. Dr. Sarah Van de Velde (University of Antwerp), Prof. Dr. Thierry Vansweevelt (University of Antwerp), and to Prof. Dr. Stijn Smet (Hasselt University) for the valuable conversations and feedback.
Declaration of Conflicting Interests
The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: This work was supported by the Fonds Wetenschappelijk Onderzoek, (grant number No. 11B5923N).
