Religious & age discrimination at work J.H. (Hanneke) Bennaars & R.C. (Roberto) Branco Martins Religious & age discrimination at work This Course is funded by the Erasmus + Jean Monnet program of the European Commission

Program Introduction & legal framework Age discrimination & sport Religion at work Religious and age discrimination at work

Equal treatment religion The Church of the Flying Spaghetti monster Religious and age discrimination at work

Religion as a discrimination ground Double fundamental right Double case law: ECJ and ECtHR The role of choice Religious and age discrimination at work

Equal treatment religion – themes at work Wearing religious symbols/clothing Not being able to perform tasks Religious and age discrimination at work

Equal treatment religion – EU system Framework Directive (2000/78): art. 1 Charter: art. 10 and 21 ECHR: art. 9 and 14 Indirect discrimination can be justified Religious and age discrimination at work

Equal treatment age Religious and age discrimination at work

Age as a discrimination ground Everyone gets there - linked to solidarity Solidarity & equal treatment are EU values e.g. art. 33 TEU: It shall combat (…) discrimination, and shall promote (…) solidarity between generations (…). Religious and age discrimination at work

Equal treatment age – themes at work Recruitment Remuneration (incl. severance) Early retirement and entitlements Career steps (promotion) Religious and age discrimination at work

Equal treatment age – system EU law Framework Directive (2000/78) art. 1 & 6 Charter: art. 21 General principle of Community law (ECJ 22 Nov 2005, C-144/04, Mangold nr. 74-76) Direct horizontal effect Indirect and direct discrimination can be justified Religious and age discrimination at work

Equal treatment age – system EU law Justification grounds ‘legitimate employment market policy is legitimate aim’, art. 6.1 Framework directive Extensive case law on ‘legitimate policy’ Religious and age discrimination at work

Age discrimination and sport Referees FIFA (KNVB) FIBA Cricket Legitimate aims: article 6 of Directive 2007/78/EC Recitals 18 and 19 Directive (Pensions - Mangold vs Palacios) Religious and age discrimination at work

Age discrimination and sport Transfer system in professional football Conclusion of contracts with ‘minors’ (article 18 sub 2 RSTP) Protection of minors (article 19 RSTP) Training compensation (article 20 RSTP) Religious and age discrimination at work

Age discrimination and sport Home Grown Player Rule The Legitimate Interest of Sports Bodies? Way forward? Religion: discrimination on the stands, but in workplace? Religious and age discrimination at work

Religious discrimination: the 14 March 2017 cases Achbita / G4S (C-157/15) Indirect discrimination Pursuit of neutrality can be legitimate aim (ref to art. 16 Charter) Bougnanoui / ADDH (C-188/15) Art. 4 (1) FD not successfully invoked Religious and age discrimination at work

Remarks on the cases The role of article 16 Charter Popular to limit social rights and now also fundamental rights? ‘Customer is always right’ Dangerous? Or enough safeguards? Religious and age discrimination at work

Religion, the ECtHR and the A-G’s Eweida v. UK (15 January 2013) S.A.S. v. France (1 July 2014) Ebrahimian v. France (26 November 2015) Specific situation rule & margin of appreciation Religious and age discrimination at work

Religion, the ECtHR and the A-G’s A-G Kokott (Achbita): important role for ‘choice’, tendency towards specific situation rule and margin of appreciation A-G Sharpston (Bougnaoui): religion is not always chosen, rejection of specific situation rule and not apply different standards ECJ: compromised, but tended a bit more towards A-G Kokott Religious and age discrimination at work

Debate Consistency over broad protection when it comes to religion? Is there a legitimacy for sports bodies to use age as a distinctive factor for a difference of treatment? Religious and age discrimination at work