EU Court Rules Banning Headscarves In The Workplace Is Not “Direct Discrimination”

March 14, 2017  |  

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“An internal rule of an undertaking which prohibits the visible wearing of any political, philosophical, or religious sign does not constitute direct discrimination,” so says the European Union court in a ruling today that makes the banning of headscarves, or hijabs, legal in the workplace.

The caveat is that the banning of such items must be based on an already established company rule that all employees must “dress neutrally,” so as to show the rule is not a direct attempt to treat individuals differently based on religious beliefs. However, as the court notes in its ruling,  it is not “inconceivable that the national court might conclude that the internal rule introduces a difference of treatment that is indirectly based on religion or belief, should it be established that the apparently neutral obligation it encompasses results, in fact, in persons adhering to a particular religion or belief being put at a particular disadvantage.” Even still, the court adds, “such a difference of treatment would not amount to indirect discrimination if it was justified by a legitimate aim and if the means of achieving that aim were appropriate and necessary.”

The ruling came as a result of the case of Samira Achbita, a Muslim who was employed as a receptionist by private company G4S in 2003. In April 2006 she informed her employer she would be wearing a headscarf to work and “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.”

In May 2006, the G4S works council approved an amendment to the workplace regulations which stated “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.” The ammendent, which was previously an “unwritten rule,” the BBC said, began being enforced June 13, the day after Achbita was dismissed for continuing to wear the headscarf at work and she challenged the dismissal in court to no avail today’s ruling shows.

There was one minor win, however. In the absence of an explicit internal company rule, such a policy cannot be put in place based on a customer’s wishes, the EU explained, writing “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 cannot be considered an occupational requirement that could rule out discrimination.” That decision was in reference to Asma Bougnaoui, a design engineer who was fired from French firm Micropole after a customer complained about her wearing an Islamic headscarf.

The court confirmed to the BBC that this ruling also applies to other religious signs such as “crucifixes, skullcaps and turbans.”

In a news release, John Dalhuisen, director of Amnesty International’s Europe and Central Asia programme called the ruling “disappointing” and said it gave “greater leeway to employers to discriminate against women – and men – on the grounds of religious belief.”

“The court did say that employers are not at liberty to pander to the prejudices of their clients. But by ruling that company policies can prohibit religious symbols on the grounds of neutrality, they have opened a backdoor to precisely such prejudice.”

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