Splitting up discrimination grounds
Fieke Weber
by Fieke Weber
Can you split up grounds of discrimination? That is the question in a case currently before the Court of Justice of the European Union (CJEU). In addition, one of the questions before the Court is whether the employer is allowed to pursue a so-called neutrality policy.In this case in Belgium, a woman who wore a headscarf applied for an internship. The applicant was rejected for the internship position because she did not want to comply with the employer's neutrality policy. The employer's neutrality policy stipulated that employees were not allowed to express their religion, ideology or political beliefs in any way. The applicant believed that she was directly or indirectly discriminated against on the basis of religious belief, and asked the court to determine this violation.The Belgian court submitted a number of questions to the CJEU. The key question now before the CJEU is whether the distinction made by national legislation between religious, philosophical and political beliefs should be regarded as a provision more favourable to the protection of the principle of equal treatment than that of the Directive. The CJEU, in its ruling of 13 October 2022, ruled that “religion or belief” constitutes one ground of discrimination, covering both religious and philosophical or spiritual beliefs. National provisions that split this grounds of discrimination, by regarding religion and belief separately, are therefore in contradiction to the Directive.Moreover, the question before the CJEU was whether the employer was entitled to pursue the neutrality policy it wished to implement. The CJEU holds that an internal rule prohibiting employees from expressing religious or philosophical beliefs through words or clothing does not constitute direct discrimination “on grounds of religion or belief”, but only does so if the neutrality policy is applied in a general and non-differentiated manner. An example of such a neutrality policy is the neutrality policy of this case, which consisted of a rule of a company’s labour code that prohibited employees from expressing through words, dress or otherwise, any religious or philosophical beliefs. The judgment therefore reaffirms that the bar is high for employers seeking to adopt neutrality policies.
TeekensKarstens advocaten notarissen (TK) is a full-service Dutch law firm with extensive experience in the field of international law. TK has established specific international teams to provide international clients with tailor-made services and information.
Fieke Weber is a lawyer at TK and part of the international corporate employment law team. Fieke advises and litigates on individual and collective dismissal law, reorganisations, transfer of undertaking, employee participation law, and remuneration policies.
GGI member firmTeekensKarstens advocaten notarissenAlphen aan de Rijn, Amsterdam,Leiden, The NetherlandsT: +31 71 535 80 00Law Firm Services
