On 14 March, by way of two cases, one French and the other Belgian, the Court of Justice of the European Union clarified its interpretation of EU law against discrimination over the wearing of visible religious signs in the workplace. The Luxembourg judges recognized that companies can adopt a neutral workplace policy as regards politics, philosophy and religion that results in the banning of headscarves. However the judges also recognized that a customer request not to professionally engage with an employee wearing a headscarf does not justify banning employees from wearing religiously significant headscarves.
Neutral policy. In the first case (a Belgian case) * a female receptionist was laid off after she refused to remove her headscarf, contravening the company’s (G4S) regulations that ban the wearing of any outward indications of political, philosophical, or religious belief. The receptionist brought her case to the Belgian courts that turned to the CJEU for its ruling on Directive 2000/78, which prohibits all discrimination in the workplace based on religious belief.
In the CJEU’s ruling the court recognizes ‘that the prohibition on wearing an Islamic headscarf, which arises from an internal rule of a private undertaking prohibiting the visible wearing of any political, philosophical or religious sign in the workplace, does not constitute direct discrimination based on religion or belief within the meaning of that directive.’ This is because it addresses all manifestations of different beliefs indifferently and treats all workers in the company the same by imposing a blanket neutral dress code. The judges added that if the Belgian judges during their examination of the specifics of the case identified the occurrence of indirect discrimination- in other words that the apparently neutral policy did in fact especially disadvantage Muslim females who have chosen to wear headscarves- banning the wearing of this religious sign could still be justified if the neutral policy was the result of legitimate business objectives (in this case the determination to present this policy in public and private dealings with customers) that are both appropriate (only applies to employees in direct contact with customers) and necessary. On this point the judges evoked the possibility for the employer to find an alternative position for the workers that did not entail direct contact with customers.
Customer requests do not constitute objective reasons. The second case** addressed the situation of a French employee who was laid off because she had refused to remove her headscarf when working onsite at a customer’s offices after the customer had requested “she not wear the headscarf the next time”. The employment contract termination was approved by two courts before an appeal to the Court of Cassation that in turn requested a preliminary ruling from Luxembourg. For the CJEU, derogations from Directive 2000/78 allowing different treatment in cases ‘arising from a genuine and determining occupational requirement’ could only be permitted under extremely strict conditions and in any case provided it ‘refers to a requirement that is objectively dictated by the nature of the occupational activities concerned,’ the court underlined, which concluded that ‘It cannot, however, cover subjective considerations, such as the willingness of the employer to take account of the particular wishes of the customer.’
* ECJ case 14 March 2017 C-157/15 Samira Achbita/G4S Secure Solutions NV
** ECJ case 14 March 2017 C-188/15 Asma Bougnaoui /Micropole SA