The Protected Grounds of Religion and Belief: Lessons for EU Non-Discrimination Law

Abstract The article draws lessons for EU non-discrimination law from the protected grounds of religion and belief through a discussion of the CJEU’s headscarf judgments. The article has two ambitions. First, the judgments are used to draw broader lessons for EU non-discrimination law, in relation to the distinction between and the justification of direct and indirect discrimination, as well as the purpose of protecting against (religious) discrimination. Second, these lessons are used to analyze the headscarf judgments and the criticism directed at them. While there is widespread agreement that the CJEU erred in these judgments, there is little agreement as to what mistakes were made. Through a discussion of these judgments, the article clarifies the difference between direct and indirect discrimination and the justification of both forms of discrimination. It is argued that the headscarf cases correctly distinguished between direct and indirect discrimination, and that the problem lies in the justificatory burden for indirect discriminatory measures, which was set too low by the CJEU.