Tue, 14 Mar 2017
Banning Muslim Headscarves in the Workplace
The impact of the wearing of Muslim headscarves is never too far away from the headlines. The Court of Justice of the European Union (CJEU) has today released a press release of its decision in two cases, the Achbita and Bougnaoui cases, concerning the wearing of Muslim headscarves in the workplace. In a cursory review of reporting of these cases in the media, the media seem to be reporting that “the Muslim headscarf ban is legal”. In an era of “fake news” it is important to understand what the Court has actually decided.
In 2003, Samira Achbita, a Muslim female employed as a receptionist by G4S in Belgium was subject to an unwritten rule within G4S that prohibited employees from wearing visible signs of their political, philosophical or religious beliefs in the workplace.
In April 2006, Ms Achbita informed her employer that she intended to wear an Islamic headscarf during working hours. In response, the management of G4S informed her that the wearing of the headscarf would not be tolerated because the visible wearing of political, philosophical or religious signs was contrary to the position of neutrality G4S adopted in its contacts with its customers.
On 29 May 2006, the G4S works council approved an amendment to the workplace regulations, which came into force on 13 June 2006. These provided that ‘employees are prohibited, in the workplace, from wearing any visible signs of their political, philosophical or religious beliefs and/or from engaging in any observance of such beliefs’. On 12 June 2006, Ms Achbita was dismissed because of her continuing insistence on wearing the Islamic headscarf at work. She challenged that dismissal in the Belgian court. The Belgian court referred the question of whether the prohibition on wearing an Islamic headscarf, which arises from a general internal rule, constitutes direct discrimination.
Decision of CJEU
The Court held that that G4S’s internal rule refers to the wearing of visible signs of political, philosophical or religious beliefs and therefore covers any manifestation of such beliefs without distinction. As the rule treats all employees in the same way, notably by requiring them, generally and without any differentiation, to dress neutrally, it did not treat the claimant differently, compared with other G4S employees. Accordingly, such an internal rule does not introduce a difference of treatment that is directly based on religion or belief, for the purposes of the directive. Therefore, the rule did not amount to direct discrimination.
However, the Court went on to say, that the rule could amount to indirect discrimination, but that was a question for the national court to determine.
The Court gave some guidance in determining indirect discrimination. It held that such a prohibition may constitute indirect discrimination if it is established that the apparently neutral obligation results in persons adhering to a particular religion or belief being put at a particular disadvantage. However, such indirect discrimination may be objectively justified by a legitimate aim, such as the pursuit by the employer, in its relations with its customers, of a policy of political, philosophical and religious neutrality, provided that the means of achieving that aim are appropriate and necessary. It is for the Belgian Court to make finding on those issues.
In October 2007, Ms Asma Bougnaoui was told, prior to being recruited by Micropole that the wearing of an Islamic headscarf might pose a problem when she was in contact with customers of the company. When Ms Bougnaoui arrived at Micropole on 4 February 2008 for an internship, she was wearing a simple bandana. She subsequently wore an Islamic headscarf at work. At the end of her internship, Micropole employed her, from 15 July 2008, as a design engineer. Following a complaint from a customer to whom she had been assigned by Micropole, Micropole reaffirmed the principle of the need for neutrality as regards its customers and asked her not to wear the veil in future. Ms Bougnaoui objected and was subsequently dismissed. She challenged her dismissal in the French courts.
The French court asked the Court of Justice whether the willingness of an employer to take account of the wishes of a customer no longer to have that employer’s services provided by a worker wearing an Islamic headscarf may be considered a ‘genuine and determining occupational requirement’ within the meaning of the directive.
Decision of the CJEU
The Court was unclear whether the French court had made proper findings of fact in the case as to the reason for the dismissal. However, it went to find that it is only in very limited circumstances that a characteristic related, in particular, to religion may constitute a genuine and determining occupational requirement, a concept which refers to a requirement that is objectively dictated by the nature of the occupational activities concerned or of the context in which they are carried out and does not cover subjective considerations, such as the employer’s willingness to take account of the particular wishes of the customer.
Therefore, the willingness of an employer to take account of the wishes of a customer no longer to have the services of that employer provided by a worker wearing an Islamic headscarf cannot be considered a genuine and determining occupational requirement within the meaning of the Directive.
The media reporting of these cases makes the common mistake of failing to differentiate between direct and indirect discrimination. It is well established that a neutral, apparently non-discriminatory rule, may adversely affect a certain group, so as to amount to indirect discrimination. For example, we all know that having a rule requiring everyone to work full time is not direct discrimination, but can amount to indirect sex discrimination because it adversely affects women with childcare responsibilities. It is then for the employer to show that it is justified being a “proportionate means to achieve a legitimate aim”. Therefore, a Muslim headscarf ban would adversely affect a specific group (female Muslim employees) disproportionately, amounting to potential indirect discrimination, requiring the employer to justify the rule. The Court has expressed the view that “neutrality” can be a legitimate aim for the purposes of indirect discrimination. However, in a world where Sikh men have worn turbans as part of a uniform policy (in the Army and Police, as well as in other sectors) it would appear difficult to justify the banning of headscarves on the “neutrality” point alone. It also leaves open the question of legitimacy of the “neutrality rule” in non-customer facing roles. Therefore, the decision is very far removed from saying that banning headscarves in the workplace is legal.
In Bougnaoui, the Court has made a clear finding that anti-discrimination legislation cannot be circumvented by arguing that the client does not want a particular person working for them - no bad thing, given that it will always be difficult for a claimant to prove the reasons why a third party had them removed from the workplace.
 Achbita, Centrum voor Gelijkheid van kansen en voor racismebestrijding v G4S Secure Solutions (Case C-157/15), and Bougnaoui and Association de défense des droits de l’homme (ADDH) v Micropole Univers and (Case C-188/15).
 See for example, http://www.standard.co.uk/news/world/european-court-of-justice-rules-employers-can-ban-women-from-wearing-headscarves-a3489126.html ; http://www.bbc.co.uk/news/world-europe-39264845 ; https://www.washingtonpost.com/world/eu-court-says-employers-can-ban-muslim-headscarf-at-workplace/2017/03/14/e2061c12-c520-4cd2-a7f8-8ca78d3c02ed_story.html?utm_term=.0140df4ead98