EU: banning the wearing of an Islamic headscarf at work could be justified on the basis of a company’s policy of neutrality
Advocate General Kokott delivered an opinion on 31 May inviting the Court of Justice of the European Union (CJEU) to rule that banning the wearing of the headscarf in the workplace can be justified on the basis of a company’s religious and ideological neutrality. This is the first case pitting the wearing of the headscarf against Directive 2000/78 that addresses equal treatment as regards employment and work. The French Court of Cassation has also brought a case for a preliminary ruling on the subject, where the Court requested the CJEU to determine if the wishes of an IT company’s client who no longer wanted to be receive services from a woman wearing a headscarf could be taken as an essential decisive business requirement that would then permit banning the wearing of such a headscarf.
In this 31 May case brought before the CJEU, a female receptionist was laid off following her refusal to stop wearing her headscarf, in spite of a company regulation (G4S) banning the wearing of any visible signs of their political, philosophical or religious beliefs. The employee in question brought the case to the Belgian courts that then turned to the CJEU to interpret directive 2000/78 that prohibits all discrimination based on religious belief at the workplace.
In the conclusions delivered on 31 May Advocate General Kokott affirmed that the prohibition did not only apply to visible religious signs and did not apply exclusively to religion because it also addressed all visible signs of political and ideological conviction and so should not be regards as a direct religious discrimination because the employee in question had not been treated in a less favorable manner. “However, since such a rule is in practice capable of putting individuals of certain religions or beliefs — in this case, female employees of Muslim faith — at a particular disadvantage by comparison with other employees, it may, if it is not justified in some way, constitute indirect religious discrimination (Article 2(2)(b) of Directive 2000/78).” Indirect discrimination does not however apply here since the prohibition was justified. The advocate general justifies the enterprise’s reasons for adopting a company policy of neutrality as expressed by its dress code and finds the banning of the headscarf to be a priori appropriate and proportionate. To this end Article 4 of Directive 2000/78 provides for justifying unequal treatment on the basis of a decisive and essential requirement.
Advocate General Kokott added that in order to appreciate the justification it was important to take into account the size and conspicuousness of the religious symbol, the nature of the employee’s activity and the context in which she must perform her activity, as well as the national identity of the EU Member State concerned (by way of concession to French arguments that push for the principle of secularism that is enshrined in the constitution). The CJEU still has to deliver its final decision, which may change the tone of this ruling.
A French case pending.The French court asked the CJEU to determine if the wish of a customer of an information technology consulting company no longer to have the information technology services of that company provided by an employee, a design engineer, wearing an Islamic headscarf, is a genuine and determining occupational requirement, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out. The case was brought in April 2016 and awaits the advocate general’s imminent conclusions.