In SCRL (Religious clothing) (Judgment) [2022] EUECJ C-344/20, the CJEU has ruled that an internal rule of an undertaking prohibiting the visible wearing of religious, philosophical or spiritual signs does not constitute direct discrimination if it is applied to all workers in a general and undifferentiated way.

The case relates to a dispute between LF, a Muslim who wears the hijab, and SCRL, a company which manages social housing, about a failure to take into consideration LF’s unsolicited application for an internship on the ground that, during an interview, she said that she would refuse to remove her hijab to comply with the policy of neutrality that is promoted within SCRL and included in its terms of employment. A few weeks later, she renewed her request for an internship with SCRL, offering to wear another type of head-covering, but that request was refused on the ground that no type of head-covering was permitted on SCRL’s premises, whether a cap, a hat or a headscarf.

She reported the matter to the domestic authorities as a case of discrimination and sought an interdict from the local labour court (Tribunal du Travail Francophone de Bruxelles) complaining that the refusal to give her an internship had been based, directly or indirectly, on her religious belief, contrary to the provisions of the Belgian General Anti-discrimination Law.

The Tribunal asked the Court of Justice whether the words “religion or belief” in Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (the Equal Treatment Directive) are to be interpreted as two facets of a single protected criterion or as two separate criteria. It also asked the Court whether the prohibition wearing of signs or items of clothing with connotations contained in SCRL’s terms of employment constituted direct discrimination based on religion.

The Court of Justice held that religion and belief must be regarded as a single ground of discrimination: otherwise, the general framework for equal treatment in employment and occupation provided for by EU law, in particular the Equal Treatment Directive, will be undermined.

Making specific reference to the judgments in G4S Secure Solutions and in Wabe and MH Müller Handel, the Court observed that a provision of an undertaking’s terms of employment which prohibits workers from manifesting, through words, through clothing, or in any other way, their religious or philosophical beliefs, whatever those beliefs may be, does not constitute direct discrimination on the ground of religion or belief for the purposes of EU law, provided that that provision is applied in a general and undifferentiated way. Because every person may have a religion or religious, philosophical or spiritual belief, such a rule, provided that it is applied in a general and undifferentiated way, does not establish a difference in treatment based on a criterion that is inextricably linked to religion or to those beliefs.

The Court also said, however, that an internal rule such as that applied within SCRL may constitute a difference in treatment that is indirectly based on religion or belief if it is established – which it is for the domestic court to ascertain – that the apparently neutral obligation it encompasses results, in fact, in persons adhering to a particular religion or belief being put at a particular disadvantage.

It adds that a difference in treatment would not constitute indirect discrimination if it were objectively justified by a legitimate aim and the means of achieving that aim were appropriate and necessary, while at the same time recalling that the mere desire of an employer to pursue a policy of neutrality – while in itself a legitimate aim – is not sufficient, as such, objectively to justify a difference in treatment indirectly based on religion or belief, because such a justification can be regarded as being objective only where there is a genuine need on the part of that employer, which it is for that employer to demonstrate.

Lastly, the Court noted that, when a national court is assessing the justification for indirect discrimination and balancing diverging interests, EU law does not preclude it from ascribing greater importance to interests relating to religion or belief than to those resulting from, inter alia, the freedom to conduct a business, provided that such an approach stems from its domestic law.

The Court ruled as follows:

“1. Article 1 of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that the words ‘religion or belief’ contained therein constitute a single ground of discrimination, covering both religious belief and philosophical or spiritual belief.

2. Article 2(2)(a) of Directive 2000/78 must be interpreted as meaning that a provision of an undertaking’s terms of employment which prohibits workers from manifesting, through words, through clothing, or in any other way, their religious or philosophical beliefs, whatever those beliefs may be, does not constitute, with regard to workers who intend to exercise their freedom of religion and conscience through the visible wearing of a sign or an item of clothing with religious connotations, direct discrimination ‘on the [ground] of religion or belief’ for the purposes of that directive, provided that that provision is applied in a general and undifferentiated way.

3. Article 1 of Directive 2000/78 must be interpreted as precluding provisions of national legislation, which are intended to ensure the transposition of that directive into national law and which are construed as meaning that religious belief and philosophical belief constitute two separate grounds of discrimination, from being taken into account as ‘provisions which are more favourable to the protection of the principle of equal treatment than those laid down in [that directive]’ for the purposes of Article 8(1) thereof.”

Prepared from the CJEU press release.