1. 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

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

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

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

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

6. 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

7. Equal treatment age
Religious and age discrimination at work

8. 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

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

10. 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 )
Direct horizontal effect
Indirect and direct discrimination can be justified
Religious and age discrimination at work

11. 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

12. 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

13. 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

14. 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

15. 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

16. 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

17. 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

18. 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

19. 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