A French affair. A female employee in the IT consultancy company was sacked for having worn a hijab and for refusing to remove it when she would be meeting the client or working at the client’s premises at a later date. The client in question had asked not to receive the company’s services from an employee wearing a headscarf. Both of France’s primary legal instances upheld the employment termination. The Court of Cassation decided to postpone its ruling and asked the ECJ to determine if the IT company’s client’s wish not to receive services from professionals wearing headscarves constituted an essential determining professional requirement that justified such a ban and the sacking of the employee as a result of violating the ban. Directive 2000/78/EC on equal treatment in employment prohibits any discrimination on the grounds of religion and belief. It also intends that a difference of treatment cannot be discriminatory in cases where there is a genuine and determining occupational requirement, when the objective is legitimate and the requirement is proportionate.
A narrow interpretation over derogations for protection from discrimination. In the opinion* delivered on 13 July the advocate general saw the derogation in this case as consituting direct discrimination “the freedom to manifest one’s religion or belief is an intrinsic part of the freedom of religion” and must be strictly interpreted. Differences in treatment can be justified for example on occupational health and safety grounds(for example wearing headgear). However for the advocate general they cannot be allowed in cases based on ‘general business interests’ since the European citizen’s fundamental right to non-discrimination took primacy.
In case the judges decided the headscarf ban constituted an example of indirect discrimination, the advocate general also laid out arguments supporting a narrow interpretation over any derogations, but did indicate that the question would however, ultimately be a question for the national court. Indirect discrimination is any difference in treatment that is not directly based on discriminatory motives (in terms of religion) but is based instead on other grounds (for example a company’s dress code) and the effects of which are felt by the whole target populations (for example employees ).
In this context, for the advocate general, only measures aimed at protecting a company’s image vis-à-vis its customers, at ensuring working hours are respected, and at maintaining employee cohesion can justify banning the wearing of headscarves in the workplace. Nonetheless the measure must correspond to a legitimate objective, which is proportionate. Furthermore the advocate general intimated that she was sure the French Cour de Cassation would not rule that the ban on the headscarf was proportionate.
Another case underway. This is not the only case pending on the issue of wearing a headscarf in the workplace. In Belgium a case awaits the ECJ ruling on if banning the wearing of headscarves at work can be justified on the grounds of a company policy on religious neutrality (read the article published on this website about this case). In this case, the advocate general Kokott adopted a somewhat contradictory position to advocate general Sharpston. It is for the ECJ now to deliver a final ruling on the subject. It is a matter of combining both cases to deliver a single decision