Faith in Equality: Religion and Belief in Europe

March 30th 2018

This report was produced by Equinet’s Working Group on Equality law in order to analyse the legal developments that have taken place in the field of discrimination based on religion and belief since 2011. This updated version of our 2011 report provides an updated legal framework and details about recent case law in the areas of employment, education, provision of goods and services, manifestation of religion and belief in public and public administration and state functions.

Background

In the past six years, the legal area has further evolved, not the least through judicial decisions that often spark wider public attention and provoke heated debates. The issues arising from religion and belief are particularly complex and dependant on the social and cultural background of each country. The number of legal disputes is growing and possibly increasing multiculturalism, conflicts between the competing fundamental rights and historical sectarian conflicts all play a role in this.

It is important to remember that the EU protection against discrimination on the grounds of religion and belief is incomplete. The EU law (Framework Directive) specifically prohibits differential treatment based on religion only in the area of employment (including vocational training). Other well-known areas from the EU directive prohibiting racial and ethnic discrimination (education, healthcare, provision of goods and services) are not covered. This gap should already have been closed by the proposed Horizontal Directive . The legislative work however has been stalled since 2008 and it seems to be difficult to find agreement across EU Member States. However, most of the Member States adopted complex national anti-discrimination law and exceeded the mandatory requirements stemming from EU law.

The aim of this publication is to provide the legal background and details about the case law concerning discrimination on the ground of religion and belief. It should assist those working with anti-discrimination law, from equality bodies to legal professionals and NGOs.

Report Overview

The opening chapter describes a general legal framework including EU law, the Council of Europe’s European Convention on Human Rights, the United Nation’s International Covenants on Civil and Political Rights, on Economic, Social and Cultural Rights, and on the Rights of the Child and the International Labour Organisation’s Convention on Discrimination. Importantly, the report underlines that at the EU level there continues to be a gap in protection against discrimination on the ground of religion and belief, with only employment and occupation covered, given the delay in adopting the ‘Horizontal Directive’ proposed in 2008. The report underlines the importance of intersectional discrimination experienced by religious minorities, involving other grounds such as gender or race and ethnic origin. Such intersections can be used to tackle some of the cases that would otherwise fall outside the scope of legal protection.

The following chapters cover the areas of employment, education, provision of goods and services, manifestation of religion and belief in public and public administration and state functions. Each chapter delves into the legal framework specific for that area and presents major court rulings (ECtHR, CJEU, national judiciary) and equality bodies’ decisions.

Other highlights from those chapters include the following:

Equality bodies shared the highest number of cases on religion and belief in the field of employment. Cases are discussed in a number of subcategories, such as recruitment and selection; headgear and religious symbols; religious harassment in the workplace; justified occupational requirement; opting out of certain work tasks; cases relating to work patterns; and conflicts of rights.
The field of education is identified as a particularly sensitive one, where any legal and policy decisions impact on and have to be viewed in light of children’s rights and their best interests. Member States have a wide margin of appreciation in whether they prioritise religious diversity or rather religious neutrality and secular education.
While the field of the provision of goods and services is not covered by EU equal treatment law on this ground, equality bodies have reported a large number of cases decided at the national and international level. These related to the refusal of services to customers wearing religious headgear; the harassment of Muslim customers during the provision of services; the accommodation of religious prescriptions when providing services; and the restriction of services to certain groups of customers due to religious reservations.
The issue of manifesting religion and belief in public is dealt with following the concerns raised by the legal prohibition introduced in some European countries of wearing the full-face veil in public areas and the prohibition of the so-called burkini on public beaches. The report concluded that a general ban on the burkini is disproportionate and could be perceived as a ‘collective punishment’ of Muslims following the terror attacks.
The ban on wearing the full-face veil in public areas has been introduced or is being discussed in a number of European countries. The jurisprudence of the European Court of Human Rights has accepted such bans in cases brought against France and Belgium. Importantly, it did so accepting the requirement of ‘living together’ as a justification and dismissing other often invoked arguments linked to public safety, gender equality and human dignity. The report argues that the abstract principle of ‘living together’ in its current form does not contribute to legal certainty as its meaning in respect of restricting fundamental rights, including the right to freedom of religion, is not sufficiently delineated.
The last chapter draws together cases in the area of public administration and state functions, including conscientious objection to military service; religious headgear in the context of administrative functions; regulation of places of worship, burial and cremation; social security and taxation; and observance of dietary laws. In general there is a wide margin of appreciation given to states to determine to what extent it is necessary to limit the individual right to freedom of religion in the context of public functions. States continue to grapple with the challenges of striking a balance between the right to freedom of thought, conscience and religion of an individual or a group against public safety, public order, health or morals, or the protection of the rights and freedoms of others.