EU Equality Law: headscarves at the workplace and segregation of Roma children in schools
Two prominent issues on the agenda of European equality lawyers have so far largely (although see recently CJ C-83/14 Nikolova) remained outside scrutiny of the Court of Justice of the European Union: discrimination on grounds of religion or belief and segregation of Roma. Recent developments may trigger change on both fronts.
Rules and practices affecting the rights of specific religious groups or Roma people at national level can reach the CJEU through two main routes. The CJEU will address questions brought to its attention by means of preliminary references from domestic courts before which a case may be pending or when seized by the European Commission in the context of an infringement action against a Member State. Furthermore, the CJEU can only engage in a detailed analysis of the legal issue if the case is admissible (eg. CJ C-194/11 Belov) and if the questions necessary to solve the litigation at domestic level relate to EU law. These pre-requisites may be in the process of coming together in the context of two preliminary questions and the early stages of two infringement procedures involving, respectively, allegations of discrimination on grounds of religion or belief and race or ethnic origin discrimination against Roma people.
To start with, two preliminary questions have recently been referred to the CJEU in relation to adverse treatment by private employers of female employees willing to wear a headscarf during working hours. In March 2015, the Belgian Cour de Cassation asked the Court of Justice if the prohibition (by the private employer of a receptionist) to wear a Muslim headscarf at work with reference to a rule preventing all workers from wearing any visible symbol expressing their political, philosophical or religious beliefs constitutes direct discrimination within the meaning of Article 2(2)(a) of Directive 2000/78 establishing a general framework for equal treatment in employment and occupation. The French Cour de Cassation soon followed, in April 2015, with a related question: does the wish expressed by a customer not to be served by a female employee (engineer) of the provider of IT services wearing an Islamic headscarf constitute a genuine occupational requirement, due to the nature of the professional activity or the conditions for its exercise, within the meaning of Article 4(1) of Directive 2000/78? It may be recalled that reliance on this exception would allow the employer to derogate from both the prohibitions of direct and indirect discrimination.
While the lawfulness of constraints placed on the wearing of religious symbols is increasingly debated in domestic fora as well as at the ECHR, it has not yet been addressed by the CJEU. The Belgian and French preliminary references constitute an opportunity for the Luxembourg Court to assess the compatibility of restrictions placed on the manifestation of religion at the workplace with Directive 2000/78 that prohibits discrimination on grounds of religion or belief in employment. It remains to be seen if and how the Court will engage with a question that remains hotly debated in certain Member States such as Belgium and France indeed. Cases such as Hay (CJ C-267/12) may create hope for those who see the CJEU as a forum to advance the protection of individual rights and overcome domestic resistances to change. In Hay, the Court indeed ruled that the refusal for same sex partners engaging in a registered partnership to obtain a benefit available to heterosexual couples getting married constituted direct discrimination in a country, such as France, where marriage was unavailable for same sex partners at the time of the facts. The provision at hand would thus have to be deemed unlawful by the French referring court.
A second set of interesting cases may also reach the CJEU in the coming months or years. The Commission has indeed been monitoring the segregation of Roma children in several educational systems and in particular in the Czech and Slovak Republics. In both cases, the Commission has initiated the preliminary stages of infringement procedures. A letter of formal notice has been sent to the Czech Republic in September 2014 and the Commission has had exchanges with the Slovak Republic in the past weeks to discuss (plans for) reforms. As the infringement procedure by which the European Commission may ultimately bring legal action against a Member State for violation of EU law – here it would presumably involve Directive 2000/43 implementing the principle of equal treatment irrespective of racial or ethnic origin – is a uniquely flexible procedure, it is still uncertain that the Commission will ultimately take legal action. Nevertheless, these initiatives illustrate that there is much room left for EU institutions, in this context the Commission and/or the CJEU, to play a greater role in tackling structural obstacles to the integration of Roma people in European societies.