PART 2, Continued from PART 1, posted on June 26, 2017.
What about wearing religious symbols at work? Is this subject to a specific legal framework?
The French Constitutional Council (“Conseil Constitutionnel”) reminds that the neutrality of the State (and its agents) derives from the principle of secularism, which is recognized by the declaration of human and citizens’ rights (“déclaration des droits de l’homme et du citoyen”) and by the Constitution of 4 October 1958 which provides that “France is an indivisible, secular, democratic and social Republic”.
Private companies and their employees are not subject to the same restrictions as the State and its agents. This is borne out by so-called “oriented” companies (eg educational institutions or denominational charities) where religious beliefs are freely expressed.
Can the employer put a limit on the religious expression of his employees (especially regarding clothing) and how can he do so?
The judges of the Cour de Cassation reminded that restrictions on religious freedom are possible (in this case, by banning headscarves), on condition that they be “justified by the nature of the task to be performed and proportionate to the intended purpose” (for example if the employee is in contact with parents and young children in the framework of social work without distinction of political or denominational opinion).
The El-Khomri Act (August 8, 2016) continued this search for a compromise, specifying in Article L.1321-2-1 of the Labor Code that the internal rules and procedures of the company could include “the principle of neutrality” and restrict “the expression of employees’ beliefs if these restrictions are justified by the exercise of other fundamental freedoms and rights or by the necessity of the proper functioning of the enterprise if they are proportionate to the intended purpose”.
And it is still in this search for a compromise that the Court of Justice of the European Union has consecrated certain limitations on the expression of religious beliefs by employees.
The European judges have recognized that a company may provide in its internal rules and procedures for a “policy of political, philosophical or religious neutrality” of its employees towards its customers. Again, the principle of neutrality is not absolute but must be provided for by the internal rules and procedures of the company and limited to employees in contact with customers.
Conversely, this principle of neutrality would not apply to employees who do not carry out their duties in contact with customers.
These legal responses, while useful, are still far from resolving all the issues and meeting the practical needs of companies.
Bryan Cave LLP has a team of knowledgeable lawyers and other professionals prepared to help French employers assess any religious issues in the workplace. If you or your organization would like more information on this or any other employment issue, please contact an attorney in the Labor and Employment practice group.