Discrimination

Introduction

EU law provides protection from discrimination on grounds of sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation in the field of employment. Protection from racial or ethnic discrimination, or discrimination based on gender also extends to accessing goods and services and to social security. Over the last decades, the Court has been asked to apply these rules to a wide variety of situations and has played a vital role in protecting fundamental rights and combating discrimination. Key questions include:

• Is an employer able to require you to have a particular religion for a job?
• Can employers ban the wearing of religious symbols, such as Islamic headscarves, at work?
• How can “disability” be defined?
• Can employers and companies enforce policies that indirectly or directly discriminate based on ethnicity under EU law?
• Can gender be used as a factor in setting insurance premiums?

Religious discrimination

The Court of Justice has been asked to rule on cases of religious discrimination at work. It has decided cases on whether employer can insist an employee follow a certain religion and whether employers can prohibit visible religious symbols in the workplace.

Religious requirements for employment

In 2016, a German court asked the Court of Justice whether a church could require a specific religious affiliation for a job. Ms Egenberger, who was not a member of any religion, had applied for a position in the Protestant Church. However, she was not invited for an interview because the job offer required applicants to belong to a Protestant church or a related Christian church in Germany. The Court ruled that this kind of requirement was not automatically illegal, but must be subject to judicial review by national courts. It must be necessary and objectively justified based on the ethos of the church as well as the nature and circumstances of the job. It must also comply with the principle of proportionality (C-414/16 Egenberger).

JQ, a senior doctor at a Catholic hospital, was fired after he remarried following a divorce. The hospital argued that this violated his duty of loyalty under his work contract, as Catholic managers were expected to uphold the Church’s views that marriage is “sacred and indissoluble”. Following a question from a German court in 2017, the Court of Justice considered that this might be religious discrimination. Requiring a senior doctor to follow Catholic rules on marriage did not appear to be a genuine or legitimate job requirement that could be justified. The Court reaffirmed that the prohibition of religious discrimination is a fundamental principle of EU law, which individuals can rely on in EU law disputes (C-68/17 IR v JQ).

Visible religious symbols at work

Two cases arrived at the Court in quick succession in 2015 about bans on Islamic headscarves at work.

The first case was referred by a Belgian court hearing a case brought by Ms Achbita, who had been dismissed from her job with security firm G4S because she insisted on wearing an Islamic headscarf at work. Initially, G4S had an unwritten rule banning visible signs of political, philosophical or religious beliefs in the workplace. In 2006, after Ms Achbita expressed her intention to wear an Islamic headscarf at work, G4S formalised this rule and explicitly banned employees from wearing these kinds of visible symbols at work.

The second case came from a French court hearing a challenge by Ms Bougnaoui, who had been dismissed from her job as a design engineer at Micropole. She wore an Islamic headscarf during her internship and continued to do so after being hired. However, after a customer complained about her headscarf, Micropole asked her to remove it due to their policy of neutrality. When Ms Bougnaoui refused to remove it, she was fired.

In these cases, the Court acknowledged that companies can ban employees from wearing visible political, philosophical or religious symbols. This kind of general ban does not amount to direct discrimination. However, it may lead to indirect discrimination if it puts people of a particular religion at a disadvantage. This indirect discrimination can be justified if the employer maintains a strict policy of neutrality in customer relations, and if it applies the ban only to employees who have visual contact with customers and considers offering these employees alternative positions without customer contact. The Court also made clear that, in the absence of a strict policy of neutrality by the employer, customer preferences alone cannot justify such a ban (C-157/15 G4S Secure Solutions and C-188/15 Bougnaoui).

In 2020, a Belgian court sought guidance from the Court of Justice regarding a case where a Muslim woman was denied an internship at the social housing company SCRL because she planned to wear a headscarf at work. SCRL enforced a strict neutrality policy, banning all head coverings, including caps, hats and headscarves. In line with its earlier case-law the Court decided that a general ban on visible religious, philosophical or spiritual symbols is not direct discrimination as long as it is applied equally to all employees. However, it may lead to indirect discrimination if it disproportionately affects certain groups. This can only be justified if employers can prove a genuine need for such a policy. The Court underlined that the need to maintain neutrality alone was not enough (C-344/20 SCRL).

In 2022, a Belgian court asked the Court of Justice whether a government office could enforce a “strict neutrality” policy without being discriminatory. This came after a municipal employee was banned from wearing an Islamic headscarf at work. Shortly after, the municipality updated its rules, preventing all staff – including those interacting with the public – from wearing visible religious or ideological symbols. The Court said that such a rule could be justified if it aimed to maintain a fully neutral administrative environment. However, it would only be fair if it was applied equally to all employees and kept as limited as necessary (C-148/22 Commune d’Ans).

Ethnic discrimination

The Court has also heard many cases involving discrimination related to racial and ethnic origin.

In 2007, a Belgian court asked the Court of Justice for guidance on a case brought against a garage door installation company, Feryn. Feryn’s director had publicly claimed that the company would not hire “immigrants” because customers did not want to let them into their homes. The Belgian Centre for equal opportunities and combating racism brought a case against Feryn, claiming that it had a discriminatory recruitment policy. The Court ruled that publicly announcing a refusal to hire people based on their ethnic origin was direct discrimination – even though no individual had directly complained or come forward as a victim (C-54/07 Feryn).

Another case alleging ethnic discrimination was brought in Bulgaria against electricity company CHEZ RB. The company usually installed electricity meters at the height of 1.7 metres. However, in a district with many Roma residents, they had installed the meters at a height of 6 to 7 metres. CHEZ RB said that this was to prevent the frequent tampering and illegal connections that were occurring in the Roma district. Ms Nikolova, a shop owner in that area, argued that this policy was discriminatory against Roma residents, and that it also negatively affected her, despite not being of Roma origin herself. The Bulgarian court asked the Court of Justice for guidance. The Court of Justice ruled that such a policy could be discriminatory. It was offensive and stigmatising, and made it harder for residents to monitor their electricity use. It also seemed excessive compared to the goal of securing the electricity network and preventing fraud. The Court confirmed that the principle of equal treatment protects not just people of a certain ethnic group, but also others who are affected by the discriminatory policies (C-83/14 CHEZ RB).

Discrimination based on disability

The Court has also dealt with issues relating to disability discrimination, clarifying what qualifies as a disability and protection afforded to disabled people and those caring for them.

In 2006, the Court provided the first definition of “disability” under EU law, in response to a question from a Spanish court. Ms Chacón Navas, employed at the catering company Eurest, was declared unfit to work in October 2003 due to an illness that prevented from working in the short term. In May 2004, Eurest fired her. The Court explained that EU law defines disability as a long-term limitation caused by physical, mental or psychological impairments that hinder a person’s ability to participate in work. It ruled that dismissals on grounds of disability must be based on whether the individual is competent, capable and available to perform essential work duties. The Court also emphasised that illness alone is not a disability (C-13/05 Chacón Navas).

After this judgment, in 2009, the EU ratified the UN Convention on the Rights of Persons with Disabilities. As a result, EU laws on equal treatment now must be interpreted consistently with the Convention.

Two years later, a Danish court asked the Court of Justice about a Danish law that allowed workers to be fired with a shortened notice period if they were absent for 120 days due to illness. A Danish trade union challenged this law, arguing that it disproportionately affected disabled workers who had illnesses that were caused by their disabilities. The Court decided that “disability” includes conditions resulting from any medically diagnosed illness, whether curable or incurable, if it caused long-term physical, mental or psychological limitations that prevented a person from being able to participate fully in work. Regarding the shortened notice period, the Court acknowledged that while the law applied to any worker absent for 120 days due to illness, disabled workers were more likely to have long-term absences. This could lead to indirect discrimination, unless the law had a legitimate aim and was proportionate (C-335/11 and C-337/11 Ring and Skoube Werge).

In 2013, a Danish court asked the Court of Justice whether EU law prohibited discrimination based on obesity, or if obesity could be considered a disability. Mr Kaltoft had worked as a childminder for fifteen years until he was fired in November 2010. As he was considered obese, the workers’ union representing him argued that his dismissal was due to unlawful discrimination based on obesity. The Court stated that EU law does not have a general rule against discrimination based on obesity. However, it found that obesity could be considered a disability if it caused reduced mobility, medical issues that prevent work, or significant discomfort while working. The Court emphasised that the protection afforded by EU law does not depend on the origin of the disability, as this would be contradictory to its aims (C-354/13 FOA (Kaltoft)).

The Court has also clarified that EU law protects employees who face discrimination because they care for a disabled child. Ms Coleman, a legal secretary, claimed that she was treated unfairly at work and forced into constructive dismissal because she was the primary carer for her disabled child. She faced insulting comments, was denied flexible working hours, and was not allowed to return to her previous job after maternity leave. The Court ruled that discrimination laws don’t just protect disabled people – they also cover employees who must care for their disabled child (C-303/06 Coleman).

Gender discrimination in insurance policies

While the Court of Justice has frequently addressed gender discrimination in the workplace, its judgments have also had broader impacts.

For example, under EU law, gender cannot be used to calculate insurance premiums unless Member States ensure the data used is reliable, regularly updated and publicly available. A Belgian consumer association and two individuals challenged this exception before a Belgian court, which referred the case to the Court of Justice. The Court ruled that using the policyholder’s gender as a “risk factor” in insurance contracts is discriminatory and undermines the principle of equal treatment of men and women. It declared the exemption invalid from 21 December 2012, requiring all insurance premiums and benefits across the EU to be calculated without gender distinctions from this date forward (C-236/09 Test-Achats).

Conclusion

Through its rulings, the Court ensures that EU laws preventing discrimination are applied and interpreted in the same way across the EU. This not only safeguards individuals from unjust treatment but fosters a more inclusive and cohesive EU labour market, where diversity is respected and protected under the law.