Religion, children and employment: the baby loup case
Abstract: This article offers a systematic analysis of the plenary Chamber of the French Cour de Cassation's final decision in the Baby Loup case which held that a private nursery had acted lawfully when requiring an employee to remove her jilbab at work, in accordance with the religious neutrality requirements of the nursery's policy. The article examines the decision in light of ECHR and French domestic legal requirements. First, it is argued that laicite—rightly held to be irrelevant—still unduly taints the reasoning. As a result, proportionality and anti-discrimination provisions are not properly applied. Secondly, the decision is compared and contrasted with recent ECtHR cases, notably Eweida and Others v UK. It is argued that a Baby Loup-type restriction does not meet ECHR standards. Additionally the margin of appreciation, used by the ECtHR to save the French ban on the full-covering of the face in the SAS case, should not, as will be demonstrated, come into play in a Baby Loup context.
Summary (2 min read)
- Leaving the face visible, the jilhab would not fall under the French 2010 Law (Loi no 2010–1192, JO 12 October 2010, 18344) which was passed to prohibit full-face-covering garments in all public spaces, including the workplace if it is open to the general public.
- Similar review has been carried out by French administrative law courts since the decision of the French Conseil d’Etat of 20 October 1989, (1989) Rec Lebon 108243.
- 23 Yet, as will be shown below, neither anti-discrimination or religious freedom requirements were properly applied or correctly construed by the French Cour de cassation in its final 2014 Baby Loup decision.
- As well as sitting at the crossroads of several legal regimes (anti-discrimination and human rights protection frameworks) and of several legal orders (EU, Council of Europe and national orders), religious claims in employment contexts are often emblematic of constitutional values which touch on the specificities of national Church/State arrangements and legal traditions.
I AN INTERNAL CRITIQUE
- The Baby Loup 2014 decision superficially seems to follow orthodox French legal reasoning: the Cour de cassation resists the temptation to inflate laïcité beyond its usual remit and confirms instead the applicability of French employment law provisions.
- For reflections on the case in light of EU requirements, see Myriam Hunter-Henin, ‘Living Together in an Age of Religious Diversity: Lessons from Baby Loup and SAS’ (2015) OJLR 1, 11-13, 18.
- Cassation holding otherwise lies in the unconvincing abstract assumptions underlying its reasoning.
- A concrete evidence-based assessment of the facts would have led to a more rigorous and fairer treatment of the case.
A Disproportionate and Discriminatory Restriction
- According to the Cour de cassation’s final 2014 decision on Baby Loup, the case fell under private employment law.
- The policy stated that ‘rights to freedom of conscience and freedom of religion recognized to staff members could not be invoked to undermine the principles of laïcité and neutrality which applied across all of the nursery’s activities both within the nursery’s premises and outside, on visits organised for the children’.
- 32 The loose and abstract assessment of proportionality requirements in this case contrasts with the detailed scrutiny manifested in previous French case-law.
- In previous French administrative caselaw relating to bans imposed on alcohol consumption in the workplace, 33 French courts have subjected company policies to a minute scrutiny.
- 34 The employer may decide to introduce further restrictions but only if they pursue a legitimate aim and are proportionate.
B Specific Rules for Child Care Sector Employees
- Following constant French administrative case-law, 37 the plenary Chamber of the Cour de cassation held that the principle of laïcité was not applicable to nursery staff.
- Under French Law, laïcité (and the religious neutrality duties it carries for employees) may extend at times to private companies but only if these companies are entrusted with a mission of public service.
- But whatever the position, it was not for the Cour de cassation in Baby Loup to question the established case-law on the confines of laïcité.
- The plenary Chamber of the Cour de cassation, like the Court of appeal of Paris, assumes that a policy of social cohesion and protection of children presupposes the concealment of religious signs.
II A EUROPEAN CRITIQUE
- As shown above, the 2014 Cour de cassation Baby Loup decision dismissed arguments based on reasoning from anti-discrimination and human rights protection summarily.
- It is submitted however that Dahlab does not offer irrefutable support for the Cour de cassation’s final decision in Baby Loup.
- First, recent ECtHR cases suggest that religious freedom claims can no longer be summarily dismissed.
- Secondly, the assumption that non-face covering Islamic dress will necessarily conflict with children’s freedom of conscience an no longer be entertained.
A. Outdated Filters
- Statements in the recent SAS decision have revealed that the ECtHR will now be more attentive to the dilemmas faced by individuals in such situations.
- The fact that the Baby Loup nursery’s policy already contained a religious neutrality clause (albeit a weaker version) when the employee joined the nursery is held against her.
- The substantive rationale put forward by the Cour de cassation –respect for children’s freedom of conscience– is even more contentious.
- 49 The ECtHR approved the position of the Swiss authorities.
- At such a young age, children might not have reached the questioning phase referred to in Dahlab and their encounters with their nursery carer might be less frequent than the daily contacts between 46 Supra (n 36), para 83.
B. Common Values
- The Cour de cassation approved the general restriction imposed in Baby Loup in the name of children’s fundamental rights.
- If social cohesion and children’s rights were really at stake in Baby Loup, their protection should not be optional and depend on whether the employer concerned had inserted a clause to that effect in the nursery policy.
- Recent ECtHR case-law provides indication as to how this complex imbrication of corporate and national interests might be assessed in Strasbourg.
- 66 In Eweida, a British Airway employee who had been told by her employer to conceal the cross she was wearing had raised an unsuccessful challenge on the basis of religious discrimination law before English domestic courts.
- Parental preferences cannot legitimately justify curtailing others’ rights to express their faith.
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Q1. What are the contributions in this paper?
The aim of this article is to offer a systematic analysis of the French Cour de cassation ’ s plenary Chamber final decision on the Baby Loup case in which it was held that a private nursery had lawfully required one employee to remove her jilhab at work, in accordance with the general religious neutrality requirements contained in the nursery ’ s policy. The article examines the decision in light of ECtHR and French domestic legal requirements.