Religious Expression in the Workplace Before the European Court of Human Rights and the Court of Justice of the European Union: Discriminating Against a Fundamental Right?
Applying Non-Discrimination Law, Goulas D. and Kofinis St. (eds.), Hellenic League for Human Rights, Thessaloniki, 2018, pp. 146-193
18 Pages Posted: 27 Nov 2018
Date Written: March 3, 2017
The analysis focuses on the recent Opinion of Advocate General (AG) Kokott and AG Sharpston on the Achbita and Bougnaoui cases respectively, which were referred to the Court of Justice of the European Union (CJEU) concerning the issue of religious expression in the workplace. The CJEU will deliver its judgments for the first time on religious discrimination in employment after, what has been, 16 years that the Directive 2000/78/EC has entered into force. The paper compares the facts of the cases and the arguments that the AGs have put forward with each other as well as with context-related jurisprudence of the European Court of Human Rights (ECtHR). By assessing whether the CJEU’s and ECtHR’s related case-law has been divergent or coherent, the paper sketches a theoretical framework between the juxtaposed regimes of the European Union and the Council of Europe. In this respect, the analysis stresses how this comparison answers to three underlying questions: the question of the framing of the debate; the question of how perception translates in the assessed cases and finally the question of whether religion is a choice or not. It draws attention on how AG Sharpston concluded that the employee’s dismissal amounted to direct discrimination against her on the basis of her right to freedom of religion enshrined in both Article 9 of the European Convention of Human Rights (ECHR) and Article 10 of the Charter of Fundamental Rights of the European Union (CFREU). The analysis highlights that what underlies the respective cases are core legal concepts of autonomy, human dignity and equality as premises of substantive justice. By recognising links between human rights protection and the non-discrimination norms, the analysis aims to reflect on the nature of religious freedom as a fundamental right consisting of both an individual and group dimension, which needs to be protected at a symbolic and practical level for the purposes of genuine plurality and social cohesion.
Keywords: EU anti-discrimination law; ECHR; CJEU; Religious symbols; Freedom of religion; Freedom of religious expression in the workplace
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