Rulings of European Court of Justice (ECJ)
In two recent landmark decisions, the ECJ expressed its opinion on the issue of whether employers may ban the wearing of an Islamic headscarf at work.
First, the European judges established that an internal rule of a company that prohibits the wearing of any visible political, philosophical or religious sign at work does not constitute direct discrimination against employees who want to wear an Islamic headscarf based on their religion. The ECJ then ruled that discrimination might be deemed to exist if there was no general company rule of neutrality and the employer banned the wearing of an Islamic headscarf only to satisfy the wish of a customer.
The rulings specifically concerned cases in Belgium and in France. In Belgium, a Muslim woman was working as receptionist for a company that provided reception services for other companies. The employee announced after working for the company for some time that she wanted to wear a headscarf in the future. The employer then, after consulting with the works council, added to the internal rules an internal rule of neutrality that had until then been merely an unwritten rule. According to this rule, employees may not wear visible signs of their political, philosophical or religious beliefs or manifest such beliefs in any other way. The employee insisted on wearing the headscarf, however, and was then made redundant.
In the French case, a Muslim software designer was working for a major IT consulting company as project engineer. She was made redundant after a customer complained about her headscarf and she refused to refrain from wearing it at work.
Both the French court and the Belgian court referred the cases to the ECJ. They wanted to know:
● Whether the ban on wearing headscarves resulting from an internal rule constituted direct discrimination and
● Whether the employer’s willingness to satisfy the request of a customer not to have the services for the customer provided by a worker wearing an Islamic headscarf could be seen as a “genuine and determining occupational requirement” justifying unequal treatment in terms of Article 4 (1) of Council Directive 2007/78/EC.
The ECJ expressed its opinion as follows: Such an internal company rule did not constitute direct discrimination, because an internal company rule of neutrality referred without distinction to any manifestation of beliefs. All employees were thus treated equally and required to dress neutrally. Where, however, a seemingly neutral rule in fact discriminated against individuals with specific religious or philosophical beliefs, it might be indirectly discriminatory. Such an indirect discrimination could, however, also be objectively justified by a legitimate aim such as the employer’s policy of political, philosophical and religious neutrality in its relationships with customers if the means to achieve this aim were reasonable and necessary. The national courts would have to make sure that these prerequisites were met.
If, however, a company has not established such an internal rule of neutrality, a headscarf ban would not be discriminatory only if it were to constitute a “genuine and determining occupational requirement” in terms of Article 4 (1) of the Directive. The willingness of an employer to take account of the wishes of a customer no longer to have the employer’s services provided by a worker wearing an Islamic headscarf is not sufficient for this, however. Whether a requirement is “genuine” would have to be judged on the basis of objective criteria such as the type of work. Subjective wishes and aims – such as taking a customer’s wishes into account – were irrelevant (European Court of Justice ruling of 14 March 2017 – C-157/15, Belgium, and C-188/15, France).
Rulings of European Court of Human Rights (EG + HR)
The European Court of Human Rights (ECtHR judgments of 11 July 2017 – 37798/13 and 4619/12) has recently ruled that the ban on public face veiling applicable in Belgium does not violate the European Convention on Human Rights (ECHR).
Two women opposed the country-wide ban. For religious reasons, both wear the niqab, a piece of clothing that leaves only a slit for the eyes and veils the rest of the body. They stated how the ban impaired their life as Muslim women. While one of the two women, being afraid of punishment, no longer wore the niqab in public after a short time, the other has no longer left her house due to the ban.
In another case, a woman opposed the ban on face veiling regulated in three municipalities by way of charter since 2008.
The EC + HR has ruled that the ban on face veiling infringes neither the right to privacy nor the freedom of religion and the ban on discrimination. According to the Court, the ban is necessary for a democratic society in order to protect the rights and freedoms of others. The national state has the authority to determine what is required for social coexistence.
The claimant in the second case was awarded a payment of €800, however, because the national court dismissed her claim for repeal of the ban as inadmissible and thus infringed her right to effective legal protection.
German Federal Labor Court
The German Federal Labor Court (Federal Labor Court ruling of 10 October 2002 – 2 AZR 472/01) had ruled with regard to German employment law that a salesperson in a perfume shop could not be made redundant because of her headscarf. Terminating her employment would be possible only if it came to “unacceptable disturbances.” The fear of reduced revenue claimed by the employer at that time was at least not sufficient cause. The German Federal Constitutional Court upheld this judgment a year later (Federal Constitutional Court ruling of 30 July 2003 – 1 BvR 792/03).
When employers would like to ban the wearing of a Muslim headscarf, the only recommendation that can be given at the present time is to establish an internal rule of neutrality. Only on this basis can at least direct discrimination be avoided.
Otherwise, only “genuine and determining occupational requirements” in terms of the EU Directive can prevent the wearing of a headscarf. These could be, for example, certain hygiene regulations in the food industry or medical sector. Whether headgear required as part of a uniform can cause the employer to ban the wearing of a headscarf is rather doubtful, because such a uniform will, in the case of doubt, not constitute a “genuine occupational requirement.”
By Dr. Gerlind Wisskirchen, CMS Germany
Compliments of CMS Tax . Law, a member of the EACC