Abstract
This article examines the Opinion of AG Rantos in two cases concerning Islamic headscarves before the CJEU and argues that this Opinion appears to give almost carte blanche to (private) employers to adopt neutrality policies in their workplaces based on the wishes of their customers. In doing so, the AG appears to allow employers to pander to the prejudices of their customers and to push believers, and especially Muslim women, even further out of sight. It is argued that this affects not only the employment opportunities, but also the social inclusion of people from groups especially vulnerable to discrimination and that this goes against the founding values of the EU. The CJEU now has a choice: it can choose to protect the fundamental rights of religious minorities by taking these rights into account when assessing the two cases before it, or it can allow employers to pander to the prejudice of customers against people from religious minorities.
Highlights
On 25 February 2021, Advocate General (AG) Rantos delivered his opinion in two cases before the Court of Justice of the European Union (CJEU) regarding the wearing of Islamic headscarves at work, both originating from German national courts.[1]
It was mentioned that a neutrality policy like the work policies in Achbita, Bougnaoui, Wabe and Muller, would dissuade people who wear certain symbols for religious reasons from applying for employment with this employer. This links with the reference to ‘these very vulnerable categories of employees’ by former AG Sharpston, as the neutrality policies would have a serious effect on the employment opportunities and the social inclusion of people belonging to religious minorities and especially of Muslim women, groups that are already vulnerable to discrimination because of stereotypes and prejudice.[45]
In relation to the question regarding the status of such a national constitutional rule, which give stronger protection to fundamental rights, and whether this could be considered as a more favourable provision under Article 8(1) of Directive 2000/78/EC or whether these should be set aside because of primary EU law, such as Article 16 of the Charter, both AG Rantos and former AG Sharpston came to the same conclusion: neither the Directive nor Article 16 of the Charter preclude a national court from applying such national constitutional rules.[88]
Summary
On 25 February 2021, Advocate General (AG) Rantos delivered his opinion in two cases before the Court of Justice of the European Union (CJEU) regarding the wearing of Islamic headscarves at work, both originating from German national courts.[1]. According to AG Rantos, the employee’s right to freely manifest their religion under Article 10 of the EU Charter of Fundamental Rights (Charter) cannot be taken into account when assessing whether such a rule, indirectly discriminatory, is objectively justified This Opinion goes beyond what the CJEU decided in two earlier case concerning headscarves at work and appears to push people from religious minorities, and in particular Muslim women, even further out of sight. The Opinions of AG Rantos and former AG Sharpston will play a prominent role
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