Religion, Children and Employment: The Baby Loup Case
International Comparative Law Quarterly, July 2015
16 Pages Posted: 7 Jul 2015
Date Written: April 20, 2015
The aim of this article is to offer a systematic analysis of the French Cour de cassation’s plenary Chamber final decision on the Baby Loup case in which it was held that a private nursery had lawfully required one employee to remove her jilhab at work, in accordance with the general religious neutrality requirements contained in the nursery’s policy. The article examines the decision in light of ECtHR and French domestic legal requirements. First, I argue that laïcité – rightly – held to be irrelevant still unduly taints the reasoning. As a result, proportionality and anti-discrimination provisions are not properly applied. Secondly, I compare and contrast the decision to recent ECtHR cases, notably to Eweida and Others v UK. I argue that a Baby Loup-type restriction does not meet ECHR standards. Besides, the margin of appreciation, recently used by the ECtHR to save the French ban on the full-covering of the face in the SAS case, is unlikely, as will be demonstrated, to come into play in a Baby Loup context.
Keywords: laïcité, proportionality, discrimination, Article 9 ECHR, children's freedom of conscience, margin of appreciation
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