CJEU Provides Guidance on Bearing Religious, Philosophical, or Political Symbols in the Workplace

by Morgan Lewis

Morgan Lewis

The Court of Justice of the European Union provided new guidance on March 14, 2017 on the visible bearing of political, philosophical, or religious symbols in the workplace—and any direct discrimination that may result.

This guidance was much anticipated in France, as the French legal framework tries to strike a balance between secularism and nondiscrimination on the one hand and religious freedom on the other—principles that sometimes conflict, giving rise to long and difficult legal disputes.

The Court of Justice of the European Union (CJEU) has considered that a company’s internal regulations prohibiting the visible bearing of such symbols do not constitute direct discrimination, provided that such internal regulations treat all employees in a general and undifferentiated way.

The notion of religion is not expressly defined by Directive n° 2000/78, which established a general framework for equal treatment in employment and occupation in the European Union. Nevertheless, the directive refers to the European Convention on Human Rights and, as a consequence, the CJEU construes the notion of religion in light of that convention. According to the CJEU, religion shall be interpreted as covering both religious beliefs as well as the freedom to manifest those religious beliefs in public.

National judges can declare the internal regulations of a company either directly or indirectly discriminatory when their application disadvantages persons of a particular religion. However, a difference in treatment between employees having different political, philosophical, or religious convictions can be nondiscriminatory when it is justified by a legitimate purpose and when the means for achieving this purpose are appropriate and necessary. Several elements have to be taken into account to assess whether discrimination exists, according to the Advocate-General of the CJEU (e. g., size and ostentatious nature of the symbol, nature of the employee’s activity, context in which the employee has to carry out his/her professional activity, and cultural identity of the involved EU member state). If the national judge is the only one who has jurisdiction to determine if internal regulations of a company comply with European requirements, the CJEU provides guidance.

According to the CJEU, the decision by a company to portray an image of political, philosophical, or religious neutrality to both public and private clients is a legitimate purpose, especially when considering employees who directly interact with clients. This right comes from the freedom of enterprise recognized by the European Charter of Fundamental Rights. For this purpose, a prohibition on the visible bearing of political, philosophical, or religious symbols is appropriate to ensure the proper application of a policy of neutrality, provided that this policy is pursued in a systematic and coherent manner. When an employee who interacts with clients expresses the wish to bear a visible religious symbol, the employer must check whether it can offer another position to the employee in order to respect the individual’s convictions while remaining in compliance with the company’s internal regulations.

The mere request of a client not to be in contact with a person bearing any political, philosophical, or religious symbol cannot, in principle, be regarded as a professional requirement that may exclude the existence of indirect discrimination. In fact, the CJEU guidance arose out of a litigation regarding an employee who was dismissed by her employer for refusing to take off an Islamic veil during a working session for a client that requested that the veil not be worn. So, there are some professional requirements that can be considered as a form of direct or indirect discrimination. According to the CJEU, it is only under extremely limited circumstances that a characteristic linked to religion can constitute an essential and determining professional requirement. The aforementioned concept refers to a requirement objectively dictated by the nature or conditions of the performance of a professional activity and does not cover subjective considerations, such as the employer's wish to take into account the particular requests of clients. According to the Advocate-General to the CJEU, if a company’s interests justify indirect discrimination, this discrimination needs to be proportionate to the purpose pursued by the company.

French companies can use this CJEU guidance to introduce new provisions in their internal regulations as allowed by an August 8, 2016 modification to the French labor code. Indeed, under the resulting Article L. 1321-2-1, a company’s internal regulations can set a principle of neutrality at the workplace and limit the outward manifestation of employees’ convictions as long as such restrictions are justified by the exercise of other fundamental rights and freedoms or by the necessity of the proper functioning of the company, and are proportionate to the aim pursued.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morgan Lewis | Attorney Advertising

Written by:

Morgan Lewis

Morgan Lewis on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.