Is there a place for the Islamic veil in the workplace? Managerial prerogatives and the duty of reasonable accommodation in the EU anti-discrimination governance

Abstract

This article analyses whether an employer may justify a ban on religious symbols because of economic interests, such as the protection of a company’s image or customer preference. It explains the concept of managerial authority and conditions under which economic interests must yield to the principle of non-discrimination. It also suggests a method of aligning the duty of accommodation in the justification of derogations to non-discrimination. It posits that the employer needs to demonstrate that accommodating religion in a particular post or position would impose a disproportionate economic burden on the company. It concludes that the Islamic veil controversy demonstrates a need for tailor-made solutions in the private employment context and a shift from norm compliance to anti-discrimination governance.

1 Introduction

The Islamic veil controversy¹ before the CJEU is a test case for the European Union’s human rights regime. It is particularly topical now, when right-wing nationalism and anti-immigrant sentiment are growing in Europe, and the Union needs to strengthen its unity, core values, and identity. The two preliminary references submitted by the Belgian and the French highest courts inquire whether a ban on wearing religious symbols at work contravenes EU anti-discrimination law.² What they essentially question is the place of religion in the European public space. Yet, the CJEU decisions on this matter will be more than “symbolic” because of their practical implications for corporate governance and social integration of minority women through employment.

This article addresses only one aspect of the Islamic veil debate. It analyses whether a ban on religious symbols in the workplace may be justified by the economic interests of the employer. It argues that the principle of non-discrimination as a general principle of EU law implies a fundamental right not to be subject to discrimination (hereafter, the right to non-discrimination)³ which may come into conflict with the protection of other fundamental rights and freedoms. It claims that the right to non-discrimination is not absolute,⁴ but needs to be balanced against other principles and values recognized by the EU treaty law.⁵

This article suggests that non-discrimination can be reconciled with the protection of economic freedoms, notwithstanding the inherent tension between the Union’s objectives laid down in to Art. 3(3) TEU.⁶ Although EU anti-discrimination law is shaped by the distinction between direct and indirect discrimination, these concepts denote concrete subjective rights which need to be seen as legislative concretisations of the fundamental right to non-discrimination.⁷ Therefore, both the right not to be subject to direct discrimination and the right not to be subject to indirect discrimination may be limited, albeit they differ in the scope of permissible justifications.

The CJEU decisions on the Islamic veil will be first to address the issue of discrimination with regard to religion in the light of the EU anti-discrimination directives.⁸ It is expected that the CJEU will explain whether private employers may justify a refusal to employ certain persons due to economic reasons related to the protection of the company’s image or customer preference. It will also indicate factors to be taken into account by domestic courts in the assessment of company policies that have discriminatory effects on individuals who wish to manifest their faith in public.

The article argues that the Islamic veil controversy provides the CJEU with an opportunity to adopt a more robust interpretation of the principle of non-discrimination. It suggests that the prohibition of discrimination entails positive obligations which include reasonable accommodation. It also proposes a method of aligning the duty to accommodate with the duty to justify unequal treatment. This method requires showing that a request for accommodation was adequately considered by the employer and rejected due to disproportionate costs for the company rather than mere inconvenience. Such an approach seems to strengthen the value of diversity in the workplace while allowing business entities to defend their policies on economic grounds. The article concludes that economic efficiency and diversity are the fundaments of the EU anti-discrimination governance which shifts from norm compliance to management.

2 Striking a balance between non-discrimination and freedom to conduct a business

The Islamic veil ban at the workplace requires striking a balance between non-discrimination and freedom to conduct a business. In this case the Union’s primary commitment to non-discrimination is confronted with the protection of economic freedoms and property rights of business owners. The prohibition of discrimination may therefore interfere with fundamental economic freedoms, to the extent it introduces restrictions on freedom of contract and freedom to act upon one’s preference or customer preference. In this view, EU anti-discrimination law appears as a type of social legislation which corrects market choices.⁹

In essence, the principle of non-discrimination challenges the main tenet of the neoliberal ideology underpinning the EU economic integration project. Not only does it undermine the assumption about the rationality of market users, but also imposes costs on business entities.¹⁰ As a result, the prohibition of discrimination limits the freedom to conduct business,¹¹ and can be “rationally” defied by private companies who are profit-maximisers. Nevertheless, the principle of non-discrimination can be defended from a macroeconomic perspective because it helps to correct market failures.¹² It is common sense that anti-discrimination laws generate more social benefits than costs, especially if one considers the moral costs of discrimination.¹³

Although the original function of anti-discrimination law is to facilitate market access, it also pursues an ambitious social goal.¹⁴ It aims to transform the existing social structures, as well as human conduct and motivations.¹⁵ Moreover, the principle of non-discrimination serves redistribution and de-commodification of resources,¹⁶ while the costs of implementing this social agenda are shared among market participants. For this reason alone, it shall come as no surprise that business owners try to protect their economic interests against the excessive costs of compliance with the principle of non-discrimination.

The economic interests of business owners are protected under the concept of managerial authority – this means that the management of a business has certain expressed or implied rights to shape the company’s image and adopt policies in line with customer preference.¹⁷ The prohibition of discrimination substantially diminishes the managerial prerogatives because it is not a default position that can be contracted out, even if it means losing the good name or reputation of the business.¹⁸ Therefore, the main challenge of anti-discrimination law is to give an adequate account of the managerial authority of private employers or service providers, while ensuring an effective protection against discrimination.

Although EU treaty law does not provide for the lexical priority of the principle of non-discrimination, there is a shared consensus that economic rights and freedoms are subject to more far-reaching limitations than other fundamental rights, while the protection of private property implies certain obligations towards the general public.¹⁹ Moreover, “the protection of the right to property guaranteed under EU law, as now established in Art. 17 of the Charter of Fundamental Rights, does not apply to mere commercial interests or opportunities, the uncertainties of which are part of the very essence of economic activity.”²⁰

Nevertheless, the protection against discrimination should not go as far as to deprive property and business owners of the core of their rights.²¹ The fundamental character of economic freedoms in the EU legal order suggests that some managerial decisions should be taken seriously, even at the cost of limiting the principle of non-discrimination. Therefore, the prohibition of discrimination should be subject to derogations which allow companies to maintain their essential functions.²²

Reconciling interests of the employer with the individual protection requires striking a fair balance between the fundamental right not to be subject to discrimination (qualified as the right not to be discriminated against on the basis of a prohibited ground without an objective justification) and the freedom to conduct a business. Although the outcome of this balance will be always context-specific, given the importance of such factors like the character and size of business or industry, it needs to be acknowledged that business owners have a legitimate interest to claim exemptions from the prohibition of discrimination. Nevertheless, the scope of managerial derogations should be narrowly construed, especially taking into account the structural nature of discrimination and the unequal bargaining position of potential employees in absence of a strong protection of their rights.

3 The prohibition of religious discrimination and the public/private divide

The place of religion in the European public space varies across Member States due to their constitutional traditions and the models of state-church relationships.²³ Domestic courts understand and apply the principle of state neutrality and the concept of public service in different ways, and there are no common European standards regarding the place of religious symbols in public schools and administration.²⁴ In turn, the differences in national laws and practice of state-church relationships have led the ECtHR to the conclusion that there is no European consensus on this matter.²⁵ As a consequence, the ECtHR granted national authorities a wide margin of appreciation with respect to the principles governing the public service,²⁶ the school system and curriculum,²⁷ and even peaceful social co-existence. ²⁸ Still, national authorities enjoy far less discretion in cases concerning the manifestation of one’s religious views in public.²⁹

Overall, the case-law developed by the ECtRH and domestic courts with regard to freedom of religion and the prohibition of religious discrimination demonstrates that there are important differences between public sector and private sector employment.³⁰ It is also evident that the specific features of public service may justify limitations imposed on public servants or users of public services that do not apply to other contexts (like private employment). Therefore, it is pertinent to ask what specific features of public service warrant a derogation from the prohibition of discrimination on the ground of religion – or more precisely, on the manifestation of religious beliefs.

While the EU Charter of Fundamental Rights recognises the freedom of religion and non-discrimination on the ground of religion,³¹ Directive 2000/78/EC expressly prohibits discrimination with regard to religion both in public and private sectors, including public bodies.³² Although the principle of non-discrimination shall be effectively protected at the EU and the national levels, the right to non-discrimination arising from the prohibition of discrimination is not absolute and must be reconciled with the protection of other fundamental principles or values enshrined in EU treaties. In particular, the right to non-discrimination may come into conflict with the obligation to respect the national identity of Member States, inherent in their fundamental political and constitutional structures.³³

In order to protect their national identity Member States can claim a derogation from the uniform application of the principle of non-discrimination to public service. More specifically, they can claim that the principle of non-discrimination clashes with the principle of secularism which constitutes a distinctive feature of their public service tradition.³⁴ It follows that the national identity exception to the prohibition of discrimination with regard to religion can be granted upon showing that the constitution of a Member State endorses the principle of secularism (laïcité) and that secularism is a distinctive feature of the public service tradition. In this regard, the CJEU shall retain its authority to review whether such derogation does not go beyond what it is necessary to protect the national identity of a Member State.

Clearly, the national identity exception rests on the public policy argument which has been already effectively used to justify derogations from fundamental freedoms.³⁵ It is also confirmed in the limitation clause contained in the Charter that all fundamental rights and freedoms may be subject to limitations provided that they are necessary and genuinely meet the objectives recognized by the Union.³⁶ Furthermore, Directive 2000/78/EC recognises limitations based on public policy grounds when they are laid down by national law.³⁷

Still, it should be noted that the national identity exception applied in the context of EU anti-discrimination law has much wider implications than derogations from freedom of movement established in the Omega case, in particular if one compares their potential scope of application. Since the national identity exception to the prohibition of discrimination with regard to religion may apply to the entire public sector employment in Belgium or France,³⁸ it may significantly diminish the prospects for social integration of minority groups in these Member States.³⁹

The second derogation is not country-specific. It can be applied even in Member States which endorse religious symbols in public space and therefore may not claim derogations from the principle of non-discrimination on national identity grounds. This second derogation is applicable only to certain positions within public service for which the neutral image constitutes a specific job requirement. In this regard, the public service exception to the principle of non-discrimination follow derogations from the freedom of movement for workers set out in pursuance to the treaty law⁴⁰ and the case-law recognising the special status of public officials who hold “posts which involve direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State or of other public authorities.” ⁴¹

In this vein, it could be argued that certain posts in public service are involved directly or indirectly in the exercise of public authority and imply a higher standard of neutrality than other posts. As a consequence, some public officials must entirely refrain from public manifestations of their political, ideological or religious views. The public service exception as applied to distinctive posts within public service justify derogations based on the specific job requirements. The same argument regarding specific job requirements can be invoked in the private sector employment. However, in the private sector context, the protection of neutrality does not have the same tradicion like in the public service. Instead in the private sector employment the dominant principle is the principle of efficiency which only in rare situations may imply the worldview neutrality.

4 The concept of managerial prerogatives

The notion of the managerial authority was developed by Robert Post with regard to the government powers in the administration of “organizational domains dedicated to instrumental conduct.”⁴² The concept was used to justify specific limitations imposed on public servants with regard to freedom of speech⁴³ and contrasted with the governance authority regarding the general citizenry.⁴⁴ The notion of managerial authority implies that the government possesses special prerogatives which justify broader restrictions of fundamental rights than applicable to individuals outside the government largess.⁴⁵ Moreover, the government acting in its employer’s capacity has prerogatives that go beyond the usual powers of private employers.⁴⁶

The concept of managerial authority is also used to justify actions undertaken to protect economic interests of private companies.⁴⁷ In corporate governance, the managerial authority denotes special rights of company owners to determine conditions of their business transactions and employment relationships. Private sector employers use managerial prerogatives to set out business strategies, internal policies, and working conditions. Since non-discrimination sets a limit on the exercise of the managerial authority employers may claim derogations from the prohibition of discrimination to protect their managerial authority.⁴⁸

Still, the managerial authority should not give business owners a carte blanche to impose burdens which only potentially serve the interest of business efficiency or advance other institutional objectives.⁴⁹ Instead, they need to be closely linked with the specific job requirements or business necessity.⁵⁰ Therefore, a company may legitimately promote its neutral image or policies catering to customer preference but in order to be exempted from the prohibition of discrimination the employer must be able to justify these policies.⁵¹ Moreover, the scope of such derogation depends on whether a particular job or business essentially requires a neutral image or customer preference for a neutral brand.⁵²

4.1 Distinction between direct and indirect discrimination

The distinction between direct and indirect discrimination in EU law is very perplexing. It requires a prior determination of whether a measure is directly or indirectly linked to a protected category. As a matter of fact, the approach of national authorities to this distinction is not uniform. Moreover, national laws implementing the EU anti-discrimination directives differ on the question whether direct discrimination is justifiable. As the two preliminary references regarding the veil controversy show, similar circumstances are often interpreted differently even within one jurisdiction. Nevertheless, this problem may not appear at the national level or before the European Court of Human Rights, where a veil ban is primarily considered as an infringement of freedom of religion rather than a case of discrimination.⁵³

The EU anti-discrimination directives explicitly prohibit both direct and indirect discrimination. Direct discrimination occurs where one person is treated less favourably on the prohibited ground like nationality, gender, racial or ethnic origin, religion, sexual orientation, age or disability than another is, has been or would be treated in a comparable situation.⁵⁴ It means that less favourable treatment on these grounds is prohibited unless (1) it is not less favourable, or (2) it falls in the scope of a derogation.

The EU anti-discrimination directives provide four types of derogations regarding (1) genuine and determining occupational requirements,⁵⁵ (2) religious institutions,⁵⁶ (3) positive actions,⁵⁷ (4) age discrimination.⁵⁸ Moreover, Directive 2000/78/EC recognises national laws designed to ensure the operational capacity of the armed forces and the police, prison or emergency services.⁵⁹ Additionally, Member States may choose not to apply the provisions of this Directive with regard to disability and age discrimination to all or part of their armed forces in to order to safeguard their combat effectiveness.⁶⁰ In its remaining scope, the prohibition against direct discrimination under the EU regime does not yield to any justifications.⁶¹

By contrast, indirect discrimination occurs when an apparently neutral provision, criterion or practice has a discriminatory effect on a protected category compared with other persons unless it can be objectively justified.⁶² An objective justification requires showing that unequal treatment serves a legitimate interest and is appropriate and necessary. The conditions of appropriateness and necessity follow the standard proportionality test, which implies that a measure is appropriate and necessary when there are no other appropriate and less restrictive measures to achieve the aim, and the disadvantages caused are not disproportionate to the objectives thereby pursued. In this context, it is for the national court to determine whether there are other appropriate and less restrictive means enabling the aims to be achieved.

In the light of this distinction, there are two possible ways to claim derogations from the principle of non-discrimination in private sector employment. When the employer adopts a policy that excludes persons belonging to a protected category for the very fact of belonging to such category,⁶³ it is a case of direct discrimination. In this case, the only possible defence is to claim that a prohibited ground constitutes a genuine and determining occupational requirement (unless the employer is not a church or religious institution to which Art. 4(2) and (3) applies). When the employer does not take any of the protected grounds as a proxy for unequal treatment, but nevertheless puts persons belonging to a protected category at a particular disadvantage compared with other persons, the case may involve indirect discrimination. In this case, the employer should demonstrate that the policy serves a legitimate job-related interest and is proportionate.

4.2 Protecting the company’s image and catering to customer preference

The question whether the promotion of the company’s image and catering to customer preference warrants a derogation from the prohibition of discrimination with regard to religion is central to the Islamic veil controversy before the CJEU. At first, the distinction between direct and indirect discrimination in this context seems secondary since the justification based on occupational requirements or a neutral policy in case of indirect discrimination triggers the same proportionality analysis. In both cases, the employer needs to show that a measure serves a legitimate interest and is proportionate. Still, in case of occupational qualifications, the scope of permissible justifications is narrower than in case of indirect discrimination. In the words of Art. 4(1) of Directive 2000/78/EC, the genuine and determining occupational requirement should be closely related to the nature of the particular occupational activities or the context in which they are carried out.⁶⁴

The preliminary question presented in Bougnaqoui is whether a requirement not to wear the religious clothing is capable of constituting an occupational requirement in the meaning of Art. 4(1) of Directive 2000/78/EC.⁶⁵ To answer this question, the CJEU needs to determine under which circumstances pertaining to the private sector employment an occupational requirement related to religion is “genuine and determining.”⁶⁶ Notably, in the case at hand the policy was defined in a negative way and related to the context of carrying out the occupational activities rather than their nature. The employer required that a person who qualifies for the position of a design engineer shall not possess any particular characteristics related to religion. More precisely, such person shall not undertake a particular conduct related to religion when in contact with customers.

The CJEU considered a similar “job specification” as a potential case of discrimination with regard to ethnicity in Feryn.⁶⁷ It held that even mere speech may constitute an act of direct discrimination.⁶⁸ Hence, a company owner who publicly declared he would not recruit Moroccans could not claim that ethnic origin – or precisely, the fact of not belonging to a particular ethnic group – is a genuine and determining occupational qualification.⁶⁹ The company could not refer to customer preference even if the service was directly related to their home and privacy.⁷⁰ Instead, the only permissible defence was to prove that the undertaking’s actual recruitment practice did not correspond to the discriminatory statements.

It follows that a company may not openly declare that the recruitment policy is based on discriminatory preferences of its customers. Yet, it may still argue that certain job requirements are necessary to maintain its business operations.⁷¹ In limited circumstances, it is plausible that the employer justifies its recruitment policy on the ground that a discriminatory practice is necessary for maintaining the company’s image as a market brand. In such circumstances, a bona fide discriminatory practice needs to be essential for the company’s image. In this line, it could be further argued that it would be too costly for a company to forego discrimination mandated by the customer preference for a brand. Nevertheless, is seems that such argumentation is plausible only with regard to sex.⁷²

The above considerations are nonetheless central to the question referred by the Belgian Court of Cassation which inquires as to whether a company policy banning any visible manifestations of religious views at workplace amounts to discrimination with regard to religion. Although the preliminary reference suggests that such practice amounts to direct discrimination, it concerns unequal treatment which does not single out any religion, but introduces a neutral dress code.⁷³ This is therefore a neutral grooming policy which puts Muslim women at a particular disadvantage compared to other persons.⁷⁴ In this case, the CJEU needs to determine whether a company may legitimately invoke its neutral image as an objective and reasonable justification for unequal treatment with regard to religion.⁷⁵

Notably, the ECtHR addressed a similar question in Eweida and Others v. the United Kingdom.⁷⁶ In Eweida, a private company, British Airways, adopted a dress code which banned any visible religious symbols. Mrs. Eweida is a Christian and she insisted on wearing a cross at work. She was first sent home without pay and then offered another post for which it was not required to wear a uniform. It is important to note that both the ECtHR and British courts confirmed her right to manifest religion in the workplace.⁷⁷ Moreover, the ECtHR and British courts also recognised that a private company has a legitimate interest to secure its neutral image.⁷⁸ Yet, this finding does not mean that the protection of the neutral image always prevails over the employee’s right to manifest religious views in the workplace. In principle, to pass a judicial review it does not suffice that a policy serves a legitimate interest. It is also required that the adopted policy is proportionate.

Therefore, the key element in the analysis of justifications based on the neutral image of a company is the assessment of necessity and proportionality of the adopted measures. If the employer does not present other objective reasons related to the job specification (like health and safety),⁷⁹ national courts need to assess the seriousness of self-definition as a religiously-neutral company⁸⁰ and the impact of a particular religious symbol on the job performance.⁸¹

5 The concept of reasonable accommodation

The concept of reasonable accommodation describes the obligation to provide specific benefits to individuals distinguished by their protected characteristics or needs. Belonging to such categories are persons with child-care obligations,⁸² persons with disabilities, and members of religious groups. The duty to accommodate was first established in the Americans with Disabilities Act⁸³ that served as a drafting inspiration for Art. 5 of Directive 2000/78/EC which stipulates that “employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer. This burden shall not be disproportionate when it is sufficiently remedied by measures existing within the framework of the disability policy of the Member State concerned.”⁸⁴

Currently, EU law explicitly acknowledges the duty to provide reasonable accommodation only with regard to persons with disabilities.⁸⁵ In addition, Art. 2 (c) and (d) of the UN Convention of Rights of People with Disabilities lays out similar obligations, albeit broader in scope than the field of employment and occupation.⁸⁶ The CRPD clarifies that discrimination on the basis of disability “includes all forms of discrimination, including denial of reasonable accommodation,” while reasonable accommodation “means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms.”

In general, the prohibition of discrimination and the duty to provide reasonable accommodation serve the same goal of creating equal opportunities. Yet, the principle of non-discrimination focuses on social distribution, while the requirement of accommodation primarily serves de-commodification. For this reason, its tension with market competitiveness and efficiency is even greater.⁸⁷ In practice, the duty to accommodate poses a difficult question how to respond to a request for effective accommodation against the “undue hardship” or the ”disproportionate or undue burden” defence. For some authors, accommodation does not belong to the anti-discrimination law because it denotes the right to a special treatment provided that it does not generate unreasonable costs.⁸⁸ Other authors contend that employers routinely accommodate persons who are structurally advantaged.⁸⁹ Therefore, they defend the duty to accommodate persons belonging to certain protected categories by the need to correct unconscious biases towards these groups.

In the context of EU anti-discrimination law, it is not clear whether the duty to accommodate shall apply only with regard to a particular category like disability or religion, or construed as a general duty to accommodate diversity. It is also unclear whether private employers should accommodate the needs of (potential) employees which are not resulting from immutable characteristics or mandatory religious commandments but personal choices. In any case, it could be argued that the inclusion of reasonable accommodation in the interpretative framework of the EU directives is necessary to ensure the effective protection against structural discrimination. Hence, it could be viewed either as a positive obligation, which corresponds to the concept of concrete individual rights pertaining to the positive status, or the element of justification regarding unequal treatment.

Following the second view, it could be argued that private employers should be able to justify employment decisions in terms of necessity, which is a separate stage in the proportionality analysis. A specific job requirement or policy may pass the proportionality test only when it serves a legitimate interest and is necessary and proportionate. The necessity criterion means that no alternative, less burdensome measures are available to the particular employer that could effectively serve the same aim. The necessity test imposes on the employer a burden of showing that less burdensome alternatives have been considered but nevertheless rejected as not effective or excessively costly.

For the purpose of the proportionality analysis it is essential that, in order to justify the employment policy, the employer involves in an informal process of communication with the potential employee to identify the existing alternatives. In the opinion of AG Sharpston, the employer and employee need to “explore the options together in order to arrive at a solution that accommodates both the employee’s right to manifest his religious belief and the employer’s right to conduct his business.”⁹⁰ Yet, it is the employer who carries the duty of justification of his decisions in terms of necessity. Still, it is a question for the Court whether the employer may simply defend its policy on the basis of a specific job requirement related to the performance of essential duties, or has more far-reaching obligation to justify a denial of reasonable accommodation especially if the job requirement appears to be unnecessarily exclusionary towards minority groups.

To sum up, the current EU anti-discrimination law is silent on the duty to accommodate religion. However, it could be established by the Court as a mandatory part of the justification analysis. While perusing the necessity criterion in the proportionality review, courts could inquire as to whether the employer actually considered less restrictive measures that would adequately respond to special needs of potential employees. Moreover, the duty of reasonable accommodation implied in the necessity test would also make the employer involve in a meaningful dialogue with the potential employee in order to objectively assess the economic costs of accommodation.

6 The evolving model of EU anti-discrimination governance

The Islamic veil controversy shows that courts may experience a practical difficulty with the assessment of economic costs (and benefits) of non-discrimination which is necessary to ascertain whether religious accommodation is not too burdensome for a company. It also demonstrates that there is a need to shift the focus from norm compliance to management and flexible standards.⁹¹ In fact, it is already happening, for EU anti-discrimination law is evolving through the process of solving cases, which establish only general guidelines for those who need to comply with the principle of non-discrimination.⁹²

In the EU, the principle of non-discrimination together with anti-discrimination directives form a multi-level normative framework, which leaves a significant margin of discretion for management. In result, there is “a dynamic and reciprocal relationship between judicially elaborated general legal norms and workplace-generated problem-solving approaches, which in turn elaborate and transform the understanding of the general norm.”⁹³ Yet, the dynamics of this process depends on the effective communication between courts, managers and equality stakeholders (equality bodies, professional networks, trade unions, NGOs).

The judicial deference to pragmatic local solutions is evident also in national courts – for example, Lord Bingham in Begrum emphasised that it is not for courts “(…) to rule whether Islamic dress, or any feature of Islamic dress, should or should not be permitted in the schools of this country (…)” and that “the justification must be sought at the local level and it is there that an area of judgment, comparable to the margin of appreciation, must be allowed to the school.”⁹⁴ This approach may also suggest that courts lack adequate tools to analyse the current patterns of discrimination or lack legitimacy to impose their own solutions for religious accommodation even in the public school settings.⁹⁵ At the same time, the effective protection against discrimination also means that structural discrimination should be provided with judicial remedies. Therefore, courts should not give the managers a free hand, but insist on the adoption of procedural and substantive measures aimed to accommodate diversity in their business practices.

In the light of these developments, the future of EU anti-discrimination law seems to depend on the judicial response to the problem of structural discrimination and their endorsement of diversity. In this context, the shift from norm compliance to management needs to be seen as a consequence of the normative deficiency of anti-discrimination law and plurality within the EU constitutional framework. The EU as a flexible constitutional polity necessitates tailor-made solutions taking into account the specificity of public and private settings, national identities, and the type of an industry or business.⁹⁶ Still, a side effect of this shift from norm compliance to management could be re-nationalisation of anti-discrimination law and reinforcement of the existing hierarchies, leading to even greater fragmentation of this field.