Abstract
In OP v. Commune d’Ans, the Court of Justice of the European Union (CJEU) held that exclusive neutrality policies in public administrations do not constitute indirect religious discrimination provided that the policies are appropriate, necessary and proportionate in light of the context and interests at stake. This is the first headscarf case concerning a public administration. Consequently, the state neutrality principle was of importance in this judgment. Additionally, OP v. Commune d’Ans reawakened the urgent question of intersectional discrimination as the CJEU was asked whether exclusive neutrality policies constitute indirect gender discrimination, seeing as they disproportionately affect women. In Parris, the CJEU rejected the possibility of acknowledging intersectional discrimination. Though headscarf cases raise the intersectionality question, the CJEU has not revisited it. This case note discusses how while the CJEU managed to accommodate different iterations of the state neutrality principle by introducing a margin of discretion for diverse neutrality policies in OP v. Commune d’Ans, it fell short in safeguarding the general framework for equal treatment by disregarding how the conceptualization of state neutrality also impacts gender equality. A different reading of Directive 2000/78 that foregrounds this instrument's connection to the EU's gender equality directives would have enabled such an intersectional approach.
Keywords
Introduction
The CJEU's most recent headscarf case, the sixth since the landmark Achbita and Bougnaoui judgments, was a long-anticipated one. 1 OP v. Commune d’Ans, in contrast to the earlier headscarf cases about neutrality rules in private enterprises, concerned the prohibition of religious signs by a Belgian public administration. 2 In OP v. Commune d’Ans, the Grand Chamber held that public administrations may establish an entirely neutral administration provided that the neutrality requirement is appropriate, necessary and proportionate. As OP v. Commune d’Ans concerned a public administration, arguments of a slightly different nature were raised. The administration justified their exclusive neutrality policy, which prohibits all employees from wearing religious signs, with the state neutrality principle. The CJEU therefore balanced state neutrality with the freedom of religion and the prohibition of religious discrimination. 3 Where previous headscarf cases saw private enterprises invoking the ‘neutrality argument’ for commercial purposes as a part of their freedom to conduct a business, OP v. Commune d’Ans differs because it was a public administration that invoked the state neutrality principle, which is of constitutional relevance for some Member States. 4 The CJEU therefore had to accommodate diverse inter- and intra-state conceptualizations of state neutrality while simultaneously safeguarding the general framework of equal treatment.
Additionally, OP v. Commune d’Ans raises a pressing and reoccurring question. The CJEU was asked whether exclusive neutrality policies constitute indirect gender discrimination since they disproportionately affect women. This question relates to intersectional discrimination, the form of disadvantage caused by two or more discrimination grounds interacting synergistically. 5 In Parris the CJEU rejected the possibility of acknowledging intersectional discrimination. 6 Though headscarf cases reawaken the intersectionality question, the CJEU has not addressed it in these cases. 7 OP v. Commune d’Ans offered an opening for the CJEU to revisit the intersectionality question.
Before delving into the analysis, this case note first explains the factual and legal background of OP v. Commune d’Ans, followed by a summary of Advocate General (AG) Collins’ opinion. The next section summarizes the CJEU judgment. This is followed by the analysis. On the one hand, the analysis elaborates how the state neutrality argument distinguishes OP v. Commune d’Ans from earlier headscarf cases and how the conceptualization of state neutrality impacts both religious and gender equality. On the other hand, it dissects how, although the EU equality law architecture complicates the acknowledgment of intersectionality, a different reading of EU equality law could have made the development of an intersectional approach possible.
Factual and legal background
The applicant, OP, was head of office at the Belgian municipality of Ans since 2016. OP worked in the back office, meaning that she was not in contact with public service users. In 2021, OP requested to wear a headscarf at work. This request was rejected by the municipal board, upon which it provisionally prohibited the applicant from wearing religious signs at work until the administration adopted general rules on this issue. The municipal board subsequently amended its employment terms, inserting an exclusive neutrality policy. Exclusive neutrality, according to the municipality, entails that workers must refrain from any form of proselytising and that they are prohibited from wearing any overt sign which might reveal their ideological or philosophical affiliation or political or religious beliefs. This rule applies both to their contacts with the public and to their working relationships with hierarchical superiors and colleagues.
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Opinion of AG Collins
Examining the second question first, AG Collins asserted that the case does not contain any factual evidence to assess whether indirect gender discrimination had occurred. 14 He declared this question inadmissible because gender discrimination does not fall within the scope of Directive 2000/78, which is the only EU law measure the question referred to. 15
Turning to the first question on whether the administration's exclusive neutrality policy constituted direct or indirect religious discrimination, AG Collins noted that as Directive 2000/78 merely establishes a general framework for equal treatment in employment and occupation, it allows for a margin of discretion to Member States which accommodates the diversity of their approaches towards the place accorded to religion or belief within their respective systems. 16 AG Collins concluded that the exclusive neutrality policy did not constitute direct religious discrimination since it applied to all employees. 17 As for whether the exclusive neutrality policy put people adhering to a particular religion at a particular disadvantage, and thus resulted in indirect religious discrimination, AG Collins agreed with AG Sharpston's opinion in Bougnaoui that it is possible that female workers who wear a headscarf are disproportionately impacted. 18 AG Collins left it to the referring court to verify this in light of the facts. AG Collins’ admission that Muslim women are possibly disproportionately impacted signals an appreciation of intersectionality.
As for the overall question of whether exclusive neutrality policies constituted indirect religious discrimination, AG Collins held that this is not the case if three conditions are fulfilled: the administration must be responding to a genuine need which it must demonstrate, the difference in treatment must be appropriate to ensure that the desire is properly realized and the prohibition must be limited to what is strictly necessary. 19
Judgment of the Court of Justice
In response to the first question, the CJEU succinctly reiterated that neutrality rules, provided they apply generally and to all workers, do not constitute direct religious discrimination. 20 Only neutrality rules prohibiting the wearing of conspicuous, large-scale signs inextricably linked to one or more specific religions may constitute direct religious discrimination. 21 Turning to indirect religious discrimination, the CJEU held that the public administration's exclusive neutrality policy pursued a legitimate aim. The CJEU stated that the principle of neutrality of the public service in Belgium has its legal basis in Articles 10 and 11 of the Belgian Constitution (the principle of equality and non-discrimination), the principle of impartiality and state neutrality. 22 The CJEU noted that exclusive neutrality policies are not the sole option, thereby offering Member States a margin of discretion to determine the place of religion in their public sector. 23 This margin of discretion allows for neutrality policies where employees are prohibited from wearing religious signs (exclusive neutrality), employees are prohibited from wearing religious signs only in contact with public service users or all employees can wear religious signs (inclusive neutrality). 24
After establishing that exclusive neutrality policies pursue a legitimate aim, the CJEU held that the referring court must determine whether the administration pursues that objective in a genuinely consistent and systematic manner. An exclusive neutrality policy must be applied consistently to all employees, even those wearing small-sized religious signs. A failure to do so otherwise undermines the policy objective. 25 Therefore, exclusive neutrality policies in public administrations are permissible provided that they are appropriate, necessary and proportionate in light of the context and considering the various rights and interests at stake. 26 The CJEU left it up to the referring court to weigh the fundamental rights and principles at stake: on the one hand the prohibition of religious discrimination and the right to freedom of thought, conscience and religion; and the neutrality principle the public administration wants to guarantee on the other.
Turning to the second question, about whether Directive 2000/78 allows for exclusive neutrality policies even if they mostly affect women, thereby possibly constituting indirect gender discrimination, the CJEU declared this question inadmissible because gender discrimination in employment is prohibited in Directive 2006/54, and not Directive 2000/78, to which the question referred. Additionally, the lack of facts substantiating that OP had experienced indirect gender discrimination rendered the question inadmissible. 27
Comments
OP v. Commune d’Ans is noteworthy for several reasons. First, it illustrates the possible consequences of invoking state neutrality as a justification for differential treatment. This is worth noting because the state neutrality argument for public administrations, as opposed to the neutrality argument used by private enterprises, serves a different purpose. Where private enterprises often use neutrality for commercial purposes to appeal to customer preferences, state neutrality relates to the relationship between state and religion. This relationship is construed in myriad ways across EU Member States, a reality the CJEU must consider. Second, while the CJEU wants to accommodate various iterations of state neutrality, exclusive neutrality policies disproportionately impact minority religions. In the case of Islam, mostly women are impacted, thereby creating indirect gender discrimination. Thus, state neutrality exceeds the realm of religion and becomes a gender equality concern. This is where the second referred question on indirect gender discrimination, which the CJEU declared inadmissible, becomes relevant.
State neutrality: Transcending religion and encompassing gender
In OP v. Commune d’Ans, the CJEU introduced a margin of discretion that allows public administrations to instal exclusive neutrality policies, policies that prohibit religious signs only for employees in contact with public service users, or inclusive neutrality policies. The introduction of this margin of discretion is notable for at least two reasons. First, while OP v. Commune d’Ans concerned an exclusive neutrality policy (the restrictive extreme on the spectrum of possible policies), the CJEU seemed to signal that this is not the only possible policy by emphasizing the margin of discretion. Second, the introduction of the margin of discretion may be correlated to the sensitivity surrounding state neutrality, which differs from the neutrality argument in earlier cases. Earlier headscarf cases related to private employers, with neutrality being a commercial argument in the context of the freedom to conduct a business. The aim to accommodate different iterations of state neutrality across Member States seems to have prompted the introduction of the margin of discretion. Before discussing how state neutrality is not exclusively informed by religion, it is important to dissect the conceptualization of state neutrality in general and within Belgium specifically, as this is where this case originates from.
The state neutrality principle pertains to the relationship between state and religion. 28 A prong thereof is the idea that the state must not favour or discriminate against certain religions or beliefs. 29 The equal treatment of and impartiality towards religions is a prerequisite for the freedom of religion that requires states to respect religious activities, thereby connecting state neutrality to both freedom of religion and equal treatment. 30 The conceptualization of state neutrality is dependent on national traditions and their domestic contexts. 31 Accordingly, across the EU, state neutrality is construed differently. For example, France construes state neutrality restrictively, subscribing to a strict separation between religion and state whereby the state distances itself from anything religious. 32 To implement this restrictive iteration of state neutrality, France opts for exclusive neutrality policies where neutrality is achieved by eliminating any possible outward perception or assumption of impartiality towards a religion. 33 Therefore, state representatives must also espouse neutrality in appearance. Other states have adopted an inclusive conceptualization of state neutrality that correlates with inclusive neutrality. 34 With inclusive neutrality, the focus is on the neutrality of actions and not appearance. Wearing religious signs, also when working in public administrations, does not detract from neutrality. Several EU Member States including Belgium are in the middle of the spectrum between a strict separation between religion and state (exclusive neutrality) on the one hand and a close relationship between both (inclusive neutrality) on the other.
The Belgian Council of State has clarified that Belgium does not have an exclusively restrictive understanding of state neutrality as France does. 35 Belgium has a flexible approach whereby some constitutional provisions separate religion from the state, while others require cooperation between both. 36 An important provision on neutrality in the Belgian Constitution is Article 24, §1, which requires the organization of neutral education. Consequently, there have been neutrality regulations put in place for students and teachers in some public schools. In a case where the Belgian Constitutional Court was asked whether neutrality can justify prohibiting the wearing of religious signs in higher education, it held that different conceptions of neutrality align with the Belgian Constitution. Instead of substantively interpreting the neutrality principle, the Belgian Constitutional Court deferred this to the lawmaker to determine which conceptualization of neutrality they subscribed to. 37 Although the Belgian Constitution does not prescribe a certain interpretation of neutrality, there is an evolution towards a stricter interpretation in Belgian policy and practice. 38 Prohibitions to wear religious signs have been adopted by some Belgian local authorities and within some private enterprises. 39
Clearly, state neutrality is construed in myriad ways and the CJEU aims to accommodate these. Simultaneously, the CJEU must safeguard the general framework for equal treatment in employment established by Directive 2000/78. The CJEU must therefore strike the delicate balance between accommodating different iterations of state neutrality and guaranteeing that it does not level-down this general framework. 40 The vital question is therefore: did the CJEU strike this balance?
Though the CJEU's judgment accommodated different iterations of state neutrality and held that exclusive neutrality policies do not constitute indirect religious discrimination provided they are appropriate, necessary and proportionate, it fell short in averting the levelling-down of the general framework for equal treatment. The CJEU could have averted this in three ways: by extensively examining the religious discrimination as direct discrimination, by safeguarding the general framework for equal treatment when examining the legitimacy of the pursued aim and by including gender equality when weighing conflicting fundamental rights and principles in the proportionality test. These three pathways are elaborated on next.
First, this case arguably constituted direct religious discrimination because the public administration only drew up its exclusive neutrality policy after OP requested permission to wear a headscarf. 41 This suggests that the exclusive neutrality policy was drawn up to exclude headscarves, despite its seemingly general formulation. In CHEZ, the CJEU held that direct discrimination also occurs when prejudices or stereotypes against a group are what drives a policy to be adopted. 42 Case facts suggest that OP v. Commune d’Ans could fit this definition of direct discrimination. Viewing OP v. Commune d’Ans as direct religious discrimination makes a considerable difference from approaching it as indirect religious discrimination because the former does not often allow for justifications, while the latter does. 43 Direct discrimination requires more scrutiny, thus raising the chances for a finding of discrimination. However, the CJEU resorted to a stringent definition of direct discrimination which excludes OP v. Commune d’Ans.
Second, the CJEU could have safeguarded the general framework for equal treatment through an interrogation of the legitimacy of the pursued aim. A rigorous assessment of the arguments justifying neutrality rules ensures that unjustly discriminatory ideas about minority religions are not magnified. This is important because the state neutrality principle is Janus-faced and susceptible to different uses. 44 Sometimes it functions as an avenue for the inclusion of religious minorities who employ it to exercise their religions and beliefs, or to ensure equal protection of all religious and non-religious beliefs. 45 At other times, state neutrality morphs into a device for exclusion when it is weaponized against religious minorities to thwart their freedom of religion and disproportionately harm them. In the latter, state neutrality is not a lifeless principle. Rather, it imposes dominant majoritarian social norms about neutrality that disproportionately harm religious minorities with mandated outward manifestations. 46 Social – and legal – norms about neutrality are themselves not neutral and are not informed by religion alone. Neutrality is culturally informed, enabling it to enact disproportionate harm along religious, gender and racial lines. 47 This puts the legitimacy of some neutrality policies in question.
That the CJEU does not rigorously interrogate the legitimacy of pursued aims in indirect discrimination claims is a consequence of the distinction between direct and indirect discrimination which allows differential treatment to be objectively justified in the latter and not the former. However, regardless of whether the discrimination is direct or indirect, neutrality policies can magnify harmful discriminatory ideas towards religious minorities in both cases. With the lower scrutiny of objective justifications in indirect discrimination claims, the CJEU risks magnifying discriminatory beliefs and problematizing victims thereof instead of harbouring them from discrimination. 48 Simultaneously, the CJEU may prefer not scrutinizing the legitimacy of pursued aims to avoid imposing a substantive meaning of state neutrality. In contrast to private enterprises, States have a duty of neutrality upon public service users. 49 Therefore, the CJEU may have declared the pursued aims legitimate to defer the substantive interpretation of the state neutrality principle to Member States as they better understand domestic contextual intricacies. 50 Furthermore, the CJEU may prefer leaving the rigorous analysis to further in the proportionality test.
Yet in OP v. Commune d’Ans the further rigorous assessment remained wanting because the CJEU did not consider gender equality when balancing conflicting principles and fundamental rights in the proportionality test. This is the third way the levelling-down of the general framework of equal treatment could have been averted. When weighing the right to freedom of religion and the prohibition of religious discrimination on the one hand, and the principle of state neutrality on the other, one notable consideration was excluded from the scale: the disproportionately harmful effect of exclusive neutrality policies on employment opportunities of women within a religious minority such as Islam. 51 After all, exclusive neutrality policies disproportionately harm religious minorities, and religious women specifically in the case of Islam. Therefore, the state neutrality principle impacts both religious and gender equality. Directive 2000/78 itself acknowledges that when implementing the principle of equal treatment, it remains important to eliminate inequalities between men and women, especially since women often experience discrimination based on multiple grounds. 52 Directive 2000/78 connects itself to the EU's gender equality instruments such as Directive 2006/54. However, the CJEU did not see this connection and declared the question about indirect gender discrimination in the context of Directive 2000/78 inadmissible. 53
Connecting the elimination of religious discrimination to that of gender discrimination makes clear how levelling down the general framework for equal treatment based on religion for religious minorities by allowing exclusive neutrality policies immediately impacts gender equality. However, the fragmentation of EU equality law into different Directives that cover different grounds discourages an approach appreciative of the interlocking nature of grounds. Ideally, an intersectional approach to the proportionality test would be achieved by including gender equality to the balancing of the conflicting principles and fundamental rights. Such an intersectional approach, which is currently wanting, is what the next section turns to.
Awaiting the intersectional turn
OP v. Commune d’Ans is not the first time the CJEU has declared a question about indirect gender discrimination in a headscarf case inadmissible because it was raised in the context of Directive 2000/78 and not Directive 2006/54. This has previously occurred in WABE and Müller. 54 While gender and religious discrimination are prohibited in different Directives, Directive 2000/78 states that it must be implemented in a way that furthers the aim to eliminate gender inequality. This suggests that acknowledging intersectional discrimination requires connecting discrimination grounds spread out across different equality Directives. However, because of the fragmentation in EU equality law, the CJEU often views discrimination grounds and the respective equality Directives as disconnected legislation. Determining how the connections between discrimination grounds and between equality Directives can be better visualized is a prerequisite to acknowledging intersectional discrimination. Before elaborating on how this could have been done in OP v. Commune D’Ans, this section explains the fragmentation in EU equality law and how it complicates the acknowledgment of intersectionality.
The EU's fragmented equality framework is a consequence of the gradual development of EU equality law. 55 At its inception, the EU prohibited nationality discrimination. 56 The founding Treaties also guaranteed equal pay for work of equal value between men and women. 57 In the 1970s, following a series of pioneering CJEU judgments such as Defrenne, it is the equal pay provision that spurred the development of a legal framework on equal treatment of men and women in employment and social security. 58 The next notable wave of EU equality legislation came after the Treaty of Amsterdam expanded the recognized discrimination grounds to include religion or belief, age, sexual orientation, disability, and race and ethnicity in Article 19 TFEU. This was followed by the adoption of both Directive 2000/43 and Directive 2000/78. 59
This history has birthed the current fragmented EU equality framework. Additionally, this fragmentation has also entrenched a single-categorical conceptualization of discrimination where each ground is viewed in isolation from the others. A single-categorical conceptualization of discrimination assumes that grounds can be neatly delineated and hermetically sealed from each other. 60 It entrenches the idea that religious discrimination is disconnected from gender discrimination. The concept of intersectionality challenges this narrow delineation of discrimination grounds by highlighting the porous lines between grounds, making it possible for them to intertwine synergistically. 61 Therefore, when exclusive neutrality policies disproportionately harm religious minorities, sub-groups within religious minorities are uniquely harmed. In headscarf cases, the applicant profiles reveal that exclusive neutrality policies disproportionately affect Muslim women. Thus, the line between religious and gender discrimination is blurred. However, the fragmented EU equality framework encourages separating discrimination grounds from each other. Consequently, the CJEU has developed a single-categorical analysis within its equality cases. Parris, where the CJEU held that no discrimination exists based on two grounds where no discrimination exists on the grounds considered separately, exemplifies such single-categorical analysis. 62 Parris therefore closed the door for the recognition of intersectional discrimination. Headscarf cases constituting intersectional religious and gender discrimination are an opportunity to gradually reopen this door.
While the fragmented EU equality law framework is an obstacle, the law can also be read differently to develop an intersectional analysis. In other words, the law itself offers reasons for the CJEU to adjust its course. Instead of declaring the question about indirect gender discrimination inadmissible, the CJEU could have connected it to the question of religious discrimination as Directive 2000/78's recital acknowledges that this instrument should also further gender equality. Article 21 CFR could have been used to evaluate the disproportionate harm exclusive neutrality policies inflict on women who wear headscarves. Using Article 21 CFR, a provision of EU primary law, is advantageous because relevant legal principles such as the general principle of gender equality can also be considered. 63 In Defrenne, the CJEU held that the elimination of sex discrimination forms part of the fundamental rights protected as general principles of EU law. 64 General principles are inspired by Member State legal traditions and the international treaties which Member States are signatories to. 65 Provided a case falls in the scope of EU law, the CJEU can use general principles for judicial review in situations that are not covered by a specific rule. 66 Article 21 CFR and the gender equality principle could have been included alongside the prohibition of religious discrimination and the freedom of religion when balancing contesting principles and fundamental rights in the proportionality test. This would signal to national courts that the proportionality of exclusive neutrality policies should also be assessed on their impact on gender equality.
Had this route been taken, the next question is whether an analysis that is conducive to revealing the indirect gender discrimination would have been conducted. AG Collins stated that the ‘order for reference does not contain any factual evidence which makes it possible to assess whether there is any indirect discrimination on the grounds of gender in the present case’. 67 The CJEU held that there was no ‘information enabling ascertainment of the factual situation’. 68 While immediate facts of the applicant's situation in comparison with others in her place of employment provide important context, this is not the only relevant context. Substantiating a discrimination claim using the immediate context, though useful, carries a risk. Besides the immediate context such as the public administration, the broader societal context also shapes discrimination. The growing corpus of headscarf cases where all applicants are Muslim women can give rise to a presumption of gender discrimination. Elsewhere, such a broad contextualization is present. For example, a broad contextual reading of equal pay legislation facilitated the acknowledgment that paying part-time workers less than full-time workers and that excluding part-time workers from an occupational pension scheme can constitute indirect gender discrimination. 69 The indirect gender discrimination was visualized by considering the broader societal context that fosters the situation whereby women disproportionately engage in care work and therefore often work part-time. A similar broader societal contextualization in headscarf cases is pivotal because it is possible that the neutrality rule only affected the applicant, giving the impression that there is no pattern of gender discrimination. It is when the broader societal context is considered that the pattern of gender discrimination emerges.
Lastly, alongside intersectional religious and gender discrimination, headscarf cases also concern race and ethnic discrimination. Religion is closely intertwined with the grounds of nationality, ethnicity and race. 70 As former AG Sharpston noted, neutrality rules disproportionately impact people of Muslim, Jewish and Sikh faith. 71 In her opinion to LF v. SCRL, AG Medina acknowledged that it is employees belonging to minority religions that observe religious clothing obligations that face the dilemma of deciding between keeping a job or respecting the obligations of their faith. 72 These minority religions also predominantly consist of racialized minorities. Thus, allowing exclusive neutrality policies that disproportionately harm religious minorities inherently means that the discrimination plays out across racial and ethnic lines as well. Here too, EU equality law's fragmented framework comes to the fore. While religious discrimination is prohibited in Directive 2000/78, race and ethnic discrimination are prohibited in Directive 2000/43. Aside from one applicant in WABE and Müller who argued before the referring court that neutrality regulations can constitute ethnic discrimination because they disproportionately affect women from migration backgrounds, this question is yet to be substantively raised in a headscarf case. 73 The looming possibility of this question highlights the urgent need for an intersectional approach.
Conclusion
The CJEU is not in an easy position as it must leave room for Member States to express differences in how they approach conflicting fundamental rights and principles. In OP v. Commune d’Ans, the CJEU urged the referring court to balance the freedom of religion, the prohibition of religious discrimination and the state neutrality principle in order to decide whether exclusive neutrality policies constitute indirect religious discrimination. However, while accommodating diverse approaches in fundamental rights protection among Member States is a noble aim, it is also true that lowering the general framework of equal treatment based on religion for religious minorities weakens the protection against gender discrimination. This illustrates how the state neutrality principle impacts both religious and gender equality and underscores the intersectional nature of discrimination whereby grounds inform each other.
While the fragmented equality Directives complicate the development of an intersectional analysis that is appreciative of how grounds synergize and create unique harm, simultaneously, Directive 2000/78 can be read differently by emphasizing its aim to also contribute to the elimination of gender equality. This route that would facilitate the acknowledgment of intersectionality was unfortunately not taken. OP v. Commune d’Ans therefore leaves the question of when the CJEU will develop an intersectional analysis unanswered. Importantly, the adoption of the first substantive intersectional discrimination provision in the Pay Transparency Directive offers a first glimmer of hope that an intersectional analysis in the context of this Directive will emerge that will hopefully trickle down to cases brought under other equality Directives. 74
