Richard Article 2, which protected the rightsRichard Article 2, which protected the rights

Richard Nellari

            Neutrality
in freedom of religion and freedom from religion

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In Lautsi vs. Italy, the applicant considered the
school’s practice of displaying the crucifix in each classroom to be contrary
to the principle of secularism which she wanted for her children. She believed
she had a claim under Article 2, which protected the rights of parents to
ensure such education and teaching in conformity with their own religious
convictions.

Her essential claim was that Article 9 and A2P1 should
be interpreted as imposing an obligation on the State to maintain absolute
religious neutrality within the State education system. Lautsi asserted that
any manifestation of religious symbols that could be viewed as having support
should be prohibited. It was asserted that the mere exposure to the sight of a
crucifix in an educational setting would violate a child’s freedom of religion
or freedom from religion, and this would violate the parent’s right to have
their children have education in conformity with the parents religious
beliefs. 

The Second Section of the ECtHR, which issued a
unanimous judgment on 9 November 2009 holding that Italian law was incompatible
with the Convention, finding a violation of Article 9 in conjunction with A2P1
and awarding Mrs Lautsi €5,000 in damages.

Arguments in favor of removing the crucifix highlight
the age of the children in the public schools. The children were young and the
thought was that this made them more vulnerable to suggestions like religious
symbols. They would see the crucifix at the school like an endorsement by the
adults. Additionally, it is clear that the main connotation of the crucifix is
religious. Children have probably seen crosses in other connotations, but it is
decidedly religious when a figure of Jesus is on the cross.

On appeal, the Grand Chamber (by a 15-2 majority)
reversed the judgment of the Second Section. The Grand Chamber held that
Italian law is compatible with the ECHR and that no violation of Mrs Lautsi (or
her children’s) rights had occurred. The obligation to hang crucifixes in
classrooms were from a Royal Decree from 1860 and restated in 1922 and 1926 in
ministry of education circulars. The catholic church is named in the
constitution. The constitutional court has declared that secularism is one of
the main principles of the system and that the state should be pluralist. In
1985 there was an amendment that removed the principle that Catholicism was the
only official religion.

I agree with the 15-2 decision. Requiring the removal
of all religious symbols does not create neutrality. It should be a positive
law welcoming all religions. I believe it would be best to teach children about
pluralism 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.

There are numerous arguments in favor of reversing the
original decision. One is that rules cannot be neutral if the outcomes are
binary. It is not neutral to ban the crucifix because banning religious symbols
is favoring the non-religious views. On the other hand, allowing for multiple
religious symbols develops a neutral environment without taking away aspects of
a country’s identity like Italy’s history with Christianity.  With respect to allowing the non-religious
beliefs, it is harder because there are no religious symbols. However, I
believe this can be resolved by explaining to the students that they should not
feel compelled to have a religion and informing them of beliefs like atheism.
The main issue in this case is not one of religious rights but rather it is
concerning the state’s obligation to stay neutral. When church and state are
separate, it should not seem as if the state is favoring a religion or lack
thereof. I think this issue is resolved as long as other religious symbols and
views are given a level playing field with an opportunity to be on the walls
and explained to the students.

 

Lautsi was not only about the crucifix but also
tension between individual rights and collective identity. In my opinion states
should also be given a right to self determination which include their
collective identity. There are many examples of states where religious element
is part of who they are like anthems, flags and constitutions of various
countries. It does not make sense to remove all religious symbols and
representations from established practices that the state was built on. Religion
can be seen as manifesting the identity of the state. Identity of the states
should also have pluralism. If there is a singular rule to ban the to protect
individuals’ rights from religion or to religion, then this would create a lack
of pluralism in terms of states with different religious backgrounds and
religious rules.

It also seems to be the case that religion was being
targeted. Expressions of secular not banished, but religion singled out. For
example views like “go green” are not singled out as influential on children
but religious symbols are. Should we not be able to tell kids about recycling
or global warming? After all, these are also views that fall within the belief
systems that parents might find contrary to their own beliefs. The closed
neutrality argued for in the first decision would stifle a lot of teaching points
if applied evenhandedly.

Main solution; The idea should not be to separate or
to stifle religious manifestations but instead create neutrality through
accommodation.

 

Another important case regarding religious issues was
Achbita. In this decision, the European Court of Justice ruled that there was
no direct discrimination in the case of a blanket ban against signs of religious
or political beliefs.  However, it said
the ban could constitute indirect discrimination if it unduly affected
affiliates of a certain group and did not have a legitimate aim that was
appropriate and necessary. The European Court of Justice referred the case back
to court that referred the issue because it was found that a preliminary ruling
could help with the current proceedings.

The request to the European Court of Justice was
brought by the Court of Cassation in Belgium for the case brought by Samira
Achbita, a Muslim, and the Centre for Equal Opportunities and Combating Racism
against her workplace, G4S Secure Solutions NV (G4S) following Ms Achbita’s
dismissal since she was insisting that she wished to wear an Islamic headscarf
at work.

The European Court of Justice found that although the
G4S internal rule prohibiting employees wearing any visible political,
philosophical or religious signs in the workplace did not amount to direct, it
is possible that there could be indirect discrimination within Article 2(2)(b).
An obligation like the blanket ban would constitute indirect discrimination if
its apparently neutral nature results in putting individuals of a particular
religion at a disadvantage when it is applied to them.

However, even if this treatment amounts to indirect
discrimination, it may still fall within the constraints of the law if it is
objectively justified by a legitimate aim and the means of achieving that aim
are appropriate and necessary. Usually the justification is not as high for
indirect discrimination as it is for direct because indirect discrimination is
usually an unintended consequence. The European Court of Justice said it was
for the referring court to ascertain whether the ban amounted to indirect
discrimination.

I would like to explore the positions of both sides,
the company and the worker. First, the company could argue that it should have
the freedom to conduct business with its own dress code and rules. A
receptionist is the face of the business and should be able to make customers
feel comfortable. Second the company might argue that this is not
discriminating because it is applied to all the employees.

However, in response to those arguments, Achbita could
argue that businesses should not cater to discriminatory preferences of
clients. It is not okay to discriminate against certain religions, genders, or
races within a company just because the clientele of the company have those
views. It is not right to cater to the prejudice of some clients and create an
occupational rule that promotes those discriminatory views. Head scarves are not
offensive in themselves and should not create any offense to customers. Then
the real problem is clearly what it stands for- the religion. Muslims should
not have to hide their religious beliefs and lose jobs because some customers
are discriminatory.

 

G4S dismissed Ms. Achbita only because she expressed
her religion by wearing a headscarf. They did not argue that the headscarf
affected her ability to do her job. G4S only claimed that it had a company
policy of appearing “neutral,” and that their policy did this by treating each
worker’s religious beliefs equally. Advocate-General Kokott argued that a rule
targeting expression of religion does not treat a worker less favorably on
grounds of religion. She also argued that, in any event, an employee’s
willingness to show “neutrality” is a legitimate occupational requirement.

The argument that there was no direct discrimination
is clearly wrong. The expression of religion is an aspect of religion, as
Advocate-General Kokott accepted. G4S dismissed Ms. Achbita because she wore a
headscarf for religious reasons: treating her differently from a woman who wore
a headscarf for other reasons. Ms. Achbita was singled out for unfavourable
treatment because of her religion.

G4S claims?and Advocate-General Kokott agreed?that
eliminating religious clothing maintains a “neutral” work environment, and that
this is a legitimate aim allowing what would otherwise be unlawful direct or
indirect discrimination.

The claim creates the idea that employers can decide
there is a single “neutral” way that Europeans behave and dress. Under this
view, it would not be “neutral” for a woman to wear the Muslim headscarf or a
man to wear the Jewish kippah. People are only “neutral” when their religion or
beliefs are held and communicated without symbolic clothing. Such an
interpretation of EU law would promote hostility to people who show their
religion through their clothing, and to the employers for whom they work. It
would legitimize the idea that these people and their employers are partisans.
This would be particularly harmful for Muslims, who are the main victims of
religious discrimination in Europe.

Advocate-General Kokott’s position is contradicted by
the most important text of EU law:  the
Treaty on European Union. Article 2 affirms that Europe is “a society in which
pluralism, non-discrimination, tolerance, justice, solidarity and equality
between women and men prevail.”

In a society founded on pluralism, non-discrimination,
and tolerance, truly neutral employers do not target clothing which expresses
the wearer’s religion

Islam has been a European religion for 1,400 years,
yet women who express their Muslim beliefs through wearing the headscarf are
still stigmatized as not “neutral,” or truly European. In an important report
by the European Network against Racism, these women speak of the Islamophobia
they face in public and in the workplace.

If the Court upholds G4S’s conduct as lawful, it may
open the door to wider claims of “neutrality.” If a ban on the Muslim headscarf
is ruled “neutral,” employers may be encouraged to adopt bans targeting other
expressions of identity, such as language or clothing or even physical
disabilities. Should an employer be allowed to decide that “neutrality” of the
work place requires workers to speak only one language? Can an employer forbid
staff to wear distinctively Roma clothing or clothing associated with other
national minorities?

In short, does equality law not forbid employers from
demanding that workers “leave their identity at home”?their ethnicity,
language, and religion?just because the employer or the customers of the
business do agree with the way the identity is manifested?

For the first time, the Court of Justice can apply the
fundamental values of European Union law to the issue of employment
discrimination on grounds of religion. The Court should hold that a neutral
workplace is open to workers who do the job, regardless of their religious
beliefs and how they express them through clothing.

The court should consider whether the purpose of the
company rule was legitimate. And even if there was a legitimate purpose, was
the blanket ban the least restrictive measure? When considering the least
restrictive method of resolving the conflict, the court suggested that she did
not have to be fired and could have been given a back office job without
creating an undue burden.

However, this still seems like religious
discrimination and does not seem to be a practical resolution in the bigger
picture. One of the issues is that there are probably not many positions at
business that have no customer interactions. There are also an increasing
number of Muslim women that would be competing for these rare jobs. Moreover,
this really limits their career options and restricts them from jobs like
doctors, lawyers, professors or even most public service positions. I believe
that the main concern of businesses should be that the employees are skilled
and best suited to serve the customers in a professional manner. It is
important to note that there should be circumstances like in an operating room
where it needs to be removed for the sake of health concerns, but
discrimination on the behalf of customers is not a legitimate reason.

It is also important to keep in mind that businesses
cater to a diverse group of customers. When the business assesses neutrality in
the perspective of the customers, it should also consider what message it sends
to its customers. It would not be great for business for customers to realize
that people from their own religions are essentially prohibited to work for the
company because of their beliefs.

The European Court of Justice’s reasoning would
encourage employers to hide diversity. It is not enough to give them an
opportunity to get a back office job. A job that is likely not commonly
available. It does not seem to be a big deal because people that have different
religious views do not rally for other religions many times. Instead, we know
that it is just plain wrong to try and hide a disabled person in a back office
because some customers would feel uncomfortable. If there is nothing wrong with
the employee that affects his professional requirements, then it is not a
legitimate reason to accept that a back office job is enough for him or her. It
is also hard to say where the line would be drawn with these type of
regulations that are in place because of discriminatory views of a business’s
customers. Just because it is covered in a company wide policy does not mean
that the roots are free from unacceptable discrimination.

 

The common theme in Lautsi and Achbita is figuring out
the best way to interpret neutrality. These cases are important because the
stakes were high. Religion is a polarizing issue, especially because Europe is
more diverse now and more secular. The influx of Muslim immigrants has also
created a negative idea of Muslims in the country. The best thing for the state
is to be neutral in the sense that no one should be excluded. Excluding all
religious symbols is taking a position; excluding religious symbols is
promoting secularism. There can be two definitions of neutrality. Either it is
neutral because everyone is the same by removal of anything different or
neutral by permitting the difference and by giving that opportunity to
everyone.