Richard Nellari The freedom of religionand freedom from religion In Lautsi vs.
Italy, the applicant considered the school’spractice of displaying the crucifix in each classroom to be contrary to theprinciple of secularism which she wanted for her children. She believed she hada claim under Article 2, which protected the rights of parents to ensure sucheducation and teaching in conformity with their own religious convictions. Her essential claim was that Article 9 and A2P1 should beinterpreted as imposing an obligation on the State to maintain absolutereligious neutrality within the State education system. Lautsi asserted that anymanifestation of religious symbols that could be viewed as having support shouldbe prohibited. It was asserted that the mere exposure to the sight of acrucifix in an educational setting would violate a child’s freedom of religionor freedom from religion, and this would violate the parent’s right to havetheir children have education in conformity with the parents religious beliefs. The Second Section of the ECtHR, which issued a unanimousjudgment on 9 November 2009 holding that Italian law was incompatible with theConvention, finding a violation of Article 9 in conjunction with A2P1 andawarding Mrs Lautsi €5,000 in damages.
On appeal, the Grand Chamber (by a 15-2 majority) reversedthe judgment of the Second Section. The Grand Chamber held that Italian law iscompatible with the ECHR and that no violation of Mrs Lautsi (or herchildren’s) rights had occurred. The obligation to hang crucifixes inclassrooms were from a Royal Decree from 1860 and restated in 1922 and 1926 in ministryof education circulars.
The catholic church is named in the constitution. Theconstitutional court has declared that secularism is one of the main principlesof the system and that the state should be pluralist. In 1985 there was anamendment that removed the principle that Catholicism was the only officialreligion. Onestrong argument to allow Italy to keep the crucifixes in the schools ispluralism. Making one blanket rule for every state affects the bigger pictureof pluralism.
Decreasing the diversity of states’ religious protections. Anotherargument would be that religion is being targeted. Expressions of secular notbanished, but religion singled out. For example views to “go green” are not singledout as influential on children but religious symbols are. Should we not be ableto tell kids about recycling or global warming? After all, these are also viewsthat fall within the belief systems that parents might find contrary to their ownbeliefs. The closed neutrality argued for in the first decision would stifle alot of teaching points if applied evenhandedly.
Finally,the main argument is that rules Cannot be neutral if binary. Lautsi was not only about the crucifix but also tensionbetween individual rights and collective identity. In my opinion states should alsobe given a right to self determination which include their collective identity.There are many examples of states where religious element is part of who theyare like anthems, flags and constitutions of various countries. It does notmake sense to remove all religious symbols and representations from establishedpractices that the state was built on. Religioncan be seen as manifesting in identity of the state. Identity of the statesshould also have pluralism. If there is a singular rule to ban the to protectindividuals’ rights from religion or to religion, then this would create a lackof pluralism in terms of states with different religious rules.
Mainsolution; The idea should not be to separate or to stifle religious manifestationsbut instead create neutrality through accommodation. I agree with the 15-2 decision. Requiring the removal of allreligious symbols does not create neutrality. It should be a positive lawwelcoming all religions. I believe it would be best to teach children aboutpluralism and tolerance instead of banning a religious symbol from the schools.
It is best for students to know about the different religions available them,to learn respect of other religions, and to think for themselves. It is notneutral to ban the crucifix because banning religious symbols is favoring thenon-religious views. On the other hand, allowing for multiple religious symbolsdevelops a neutral environment without taking away aspects of a country’s identitylike Italy’s history with Christianity. Withrespect to allowing the non-religious beliefs, it is harder because there areno religious symbols. However, I believe this can be resolved by explaining tothe students that they should not feel compelled to have a religion and informingthem of beliefs like atheism.
The main issue in this case is not one of rightsbut rather it is concerning the state’s obligation to stay neutral; when churchand state are separate, it should not look like it is favoring a religion overanother or beliefs of no religion. I think this issue is resolved as long asother religious symbols and views are given a level playing field with anopportunity to be on the walls and explained to the students. Argumentsin favor of removing the crucifix highlighted the age of the children in thepublic schools. The children were young and the thought was that this made themmore vulnerable to suggestions like religious symbols.
They would see thecrucifix at the school like an endorsement by the adults. Additionally, it isclear that the main connotation of the crucifix is religious. Children haveprobably seen crosses in other connotations, but it is decidedly religious whena figure of Jesus is on the cross.
BOTH Thesecases are important because the stakes were high. Religion is a polarizingissue, especially because Europe is more diverse now and more secular. Bestthing for the state is to be neutral because no one should be excluded.
Another important case regarding religious issues wasAchbita. In this decision, the European Court ofJustice (ECJ) issued a ruling that a blanket ban on wearing any signs ofreligious or political beliefs did not constitute direct discrimination.However, it said the ban could constitute indirect discrimination if it disproportionatelyaffected members of a class and did not have a legitimate aim that wasappropriate and necessary. The ECJ referred the case back to the referringcourt on the basis that the preliminary ruling would assist in the ongoingproceedings.
The Courtof Cassation in Belgium had made the request to the ECJ in respect ofproceedings brought by Ms Samira Achbita, a Muslim, and the Centre forEqual Opportunities and Combating Racism (Centrum), against G4S SecureSolutions NV (G4S) following Ms Achbita’s dismissal for insisting that shewished to wear an Islamic headscarf at work.The ECJreasoned that whilst G4S’ internal rule prohibiting employees wearing anyvisible political, philosophical or religious signs in the workplace did notamount to direct discrimination under Article 2(2)(a) of Directive 2000/78, itmight constitute indirect discrimination within Article 2(2)(b). Anobligation like the blanket ban would constitute indirect discrimination if itsapparently neutral nature results in putting individuals of a particularreligion at a disadvantage when it is applied to them. However,even if this treatment amounts to indirect discrimination, it may stillfall within the constraints of the law if it is objectively justified by alegitimate aim and the means of achieving that aim are appropriate andnecessary. Usually the justification is not as high for indirect discriminationas it is for direct because indirect discrimination is usually an unintendedconsequence. The ECJ said it was for the referring court to ascertain whetherthe ban amounted to indirect discrimination. Theremight be a few arguments for the company’s side. First, the company could arguethat it should have the freedom to conduct business with its own dress code andrules.
A receptionist is the face of the business and should be able to makecustomers feel comfortable. Second the company might argue that this is notdiscriminating because it is applied to all the employees. However,in response to those arguments, Achbita could argue that businesses should not cater to discriminatory preferencesof clients. It is not okay to discriminate against certain religions, genders,or races within a company just because the clientele of the company have thoseviews. It is not right to cater to the prejudice of some clients and create an occupationalrule that promotes those discriminatory views. The hijab is normal and Muslimsshouldn’t have to hide their religious manifestations. The court should consider whether the purpose ofthe company rule was legitimate? And even if there was a legitimate purpose,was the blanket ban the least restrictive measure? When considering the leastrestrictive method of resolving the conflict, the court might find that she didnot have to be fired and could have been given a back office job withoutcreating an undue burden.
Differentimpact on different religions Thecommon theme in Lautsi and Achbita is figuring out the best way to interpret neutrality.Excluding all religious symbols is taking a position; excluding religioussymbols is promoting secularism. There can be two definitions of neutrality. Eitherit is neutral because everyone is the same by removal of anything different or neutralby permitting the difference and by giving that opportunity to everyone.Companyis the one deciding the def on neutrality so don’t give it much weight.
Grantedthere can be circumstances like in an operating room where it needs to be removedbut discrimination on the behalf of customers is not a legitimate reason. Neutrality Ms. Samira Achbita workedfor G4S in Belgium as a receptionist, with no uniform provided. When she beganwearing the Muslim headscarf, the company claimed to have a written policy of“neutrality” in the workplace, meaning a bar on clothing expressing areligious, philosophical, or political belief. G4S dismissed Ms. Achbita, andthe next day the written policy came into force.
Juliane Kokott, the Germanadvocate-general at the Court of Justice, gave an opinion on May 31, 2016that G4S’s policy was only indirect discrimination and can be justified.G4S dismissed Ms. Achbita only because she expressed her religionby wearing a headscarf. They did not argue that the headscarf affected herability to do her job. G4S only claimed that it had a company policy ofappearing “neutral,” and that their policy did this by treating each worker’sreligious beliefs equally. Advocate-General Kokott argued that a rule targetingexpression of religion does not treat a worker less favorably on grounds ofreligion.
She also argued that, in any event, an employee’s willingness to show“neutrality” is a legitimate occupational requirement.The argument that there was nodirect discrimination is clearly wrong. The expression of religion is an aspectof religion, as Advocate-General Kokott accepted. G4S dismissed Ms. Achbitabecause she wore a headscarf for religious reasons: treating her differentlyfrom a woman who wore a headscarf for other reasons.
Ms. Achbita was singledout for unfavourable treatment because of her religion.G4S claims?and Advocate-GeneralKokott agreed?that eliminating religious clothing maintains a “neutral” workenvironment, and that this is a legitimate aim allowing what would otherwise beunlawful direct or indirect discrimination.
The claim creates the idea that employers can decide there is asingle “neutral” way that Europeans behave and dress. Under this view, it wouldnot be “neutral” for a woman to wear the Muslim headscarf or a man to wear theJewish kippah. People are only “neutral” when their religion or beliefs areheld and communicated without symbolic clothing. Such an interpretation of EUlaw would promote hostility to people who show their religion through theirclothing, and to the employers for whom they work. It would legitimize the ideathat these people and their employers are partisans. This would be particularlyharmful for Muslims, who are the main victims of religiousdiscrimination in Europe.Advocate-General Kokott’sposition is contradicted by the most important text of EU law: the Treatyon European Union.
Article 2 affirms that Europe is “a society in whichpluralism, non-discrimination, tolerance, justice, solidarity and equalitybetween women and men prevail.”In a society founded on pluralism, non-discrimination, andtolerance, truly neutral employers do not target clothing which expresses thewearer’s religionIslam has been a European religion for 1,400 years, yet women whoexpress their Muslim beliefs through wearing the headscarf are stillstigmatized as not “neutral,” or truly European. In an important report by theEuropean Network against Racism, these women speak of the Islamophobia they facein public and in the workplace.If the Court upholds G4S’sconduct as lawful, it may open the door to wider claims of “neutrality.” If aban on the Muslim headscarf is ruled “neutral,” employers may be encouraged toadopt bans targeting other expressions of identity, such as language orclothing. Should an employer be allowed to decide that “neutrality” of the workplace requires workers to speak only one language? Can an employer forbid staffto wear distinctively Roma clothing or clothing associated with other nationalminorities? In short, does equality law notforbid employers from demanding that workers “leave their identity athome”?their ethnicity, language, and religion?just because the employer or the customersof the business do agree with the way the identity is manifested?For the first time, the Courtof Justice can apply the fundamental values of European Union law to the issueof employment discrimination on grounds of religion. The Court should hold thata neutral workplace is open to workers who do the job, regardless of their religiousbeliefs and how they express them through clothing.
This reasoning is shocking, to say the least. In fact, it showsa total disconnect of the Luxemburg judge from reality. A first practicalquestion would be: how many workplaces offer jobs with no customer contactwhatsoever? Maybe call centre jobs and jobs with night shifts? What about theincreasing number of Muslim women and other employees manifesting their beliefs,who aspire to professions that require contact with the public such as lawyers,doctors, professors, social workers or engineers? In practice, this‘compromise’ would in any case mean a serious curtailment of people’s right toaccess the job market.
A second question would be, what does an “image ofneutrality” of a company mean? Towards whom is a company neutral when itdecides to hide its visibly religious employees for the sake of their corporateimage? Should the main concern of an employer not be that his/her employeeshave the capacities and skills to serve the customer in a professional andneutral way? Moreover, when neutrality is assessed form the perspective ofcustomers it is often forgotten that customers are also diverse. What kind of messageis given to customers with the same background as the employees who arediscriminated because of these kind of policies? In an increasing diversesociety, with an increasing number of people with high potential and fromdifferent visible and non-visible faiths this kind of reasoning is lackingawareness of reality.Finally,the main problematic aspect of this reasoning is how the ECJ easily accepts thereasoning that employees who are treated differently would not be discriminatedagainst, as long as you ‘give them’ the ‘opportunity’ to have a back officejob. It encourages employers to hide diversity. To hide people who are visiblyreligious in the ‘closet’ of the company.
[1] Kenji Yoshino calls this phenomenon“covering”.[2]Imagine the same rationale would beapplied to other discrimination grounds. Imagine customers might feeluncomfortable in front of an employee who has a disability. Would it begenerally accepted that a European Court says: just make sure you give these employeesan alternative in a back office and we won’t consider it discrimination. Orimagine a company doesn’t allow employees who are pregnant to carry out a jobwith customer contact, how would the reaction be? And where are the limits tothese kinds of legitimations of discrimination? Would an employer be allowed torequire an employee with the name Mohammad to use another name in his contactwith customers, since he might give the impression to belong to a faith somecustomers might feel uncomfortable with? (see also an earlier post)The covering of discrimination is still discrimination. Also when it isenshrined in a general company policy and also when it is applied in aconsistent manner. The opposite message the ECJ gives in these cases isshockingly at odds with the principle of equality enshrined in the EU Charterof Fundamental Rights and in the European Convention on Human Rights.
