Jennifer Rankin in Brussels and Philip Oltermann in Berlin
European court of justice says ban on visible wearing of political, philosophical or religious sign does not constitute direct discrimination.
Employers may bar staff from wearing visible religious symbols, the EU’s highest court has ruled in its first decision on the issue of women wearing Islamic headscarves at work.
But customers cannot simply demand that workers remove headscarves if the company has no policy barring religious symbols, the court ruled on Tuesday.
On the eve of a Dutch election in which Muslim immigration has been a key issue and a bellwether for attitudes to migration and refugee policies across Europe, the European court of justice (ECJ) gave a joint judgment in the cases of two women, in France and Belgium, who were dismissed for refusing to remove headscarves.
“An internal rule of an undertaking which prohibits the visible wearing of any political, philosophical or religious sign does not constitute direct discrimination,” the court said.
“However, in the absence of such a rule, 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.”
The ECJ ruled that a company’s wish to project a neutral image was legitimate and allowed internal rules banning political, philosophical or religious symbols.
The first case was referred to the ECJ by the Belgian courts. Samira Achbita had been a receptionist for the Belgian branch of G4S, the London-listed outsourcing and security company, when after three years at the firm she decided she wanted to start wearing a headscarf at work for religious reasons. Achbita was fired in June 2006 for refusing to take off her scarf. The company said she had broken unwritten rules prohibiting religious symbols.
In the second case, Asma Bougnaoui, a design engineer, was fired from an IT consultancy firm, Micropole, after a customer complained that his staff had been “embarrassed” by her headscarf while she was on their premises giving advice. Before taking the job she had been told that wearing a headscarf might pose problems for the company’s customers.
In Achbita’s case the ECJ followed the advice of a senior legal adviser to the court, who argued that companies should be allowed to have policies banning the wearing of religious and political symbols.
“The court of justice finds 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. The rule thus treats all employees to the undertaking in the same way, notably by requiring them, generally and without any differentiation, to dress neutrally.”
In the Bougnaoui case the court’s adviser had ruled that the Frenchwoman had suffered discrimination. She had been “professionally competent” and sacked only because she had refused to remove her headscarf, the advocate general advised.
The court upheld this view with a less ringing endorsement: it said customers’ wishes not to be served by a worker wearing a headscarf did not give companies a get-out clause from EU anti-discrimination law. The ECJ did not rule, however, on whether Bougnaoui’s dismissal was based on her failure to observe company policies, saying this was a matter for the French court to determine.
Germany’s rightwing populist party, Alternative für Deutschland, welcomed the ruling: “The ECJ’s ruling sends out the right signal, especially for Germany”, said the AfD’s Berlin leader, Georg Pazderski. “Of course companies have to be allowed to ban the wearing of headscarves because the headscarf is often much more than a religious symbol. For many people it represents an anti-constitutional attitude and a political statement of oppression.”
The ruling prompted dismay from some religious groups. The Conference of European Rabbis, which comprises 700 Jewish leaders across Europe, said Europe was sending a clear message that its faith communities were no longer welcome. Referring to the rise of racially motivated incidents, Pinchas Goldschmidt, the group’s president, called on politicians to ensure Europe did not isolate religious minorities.
Maryam H’madoun, at the Open Society Justice Initiative, said she was disappointed by the ruling, which she described as discrimination against people who chose to show their religion in their dress.
“It will lead to Muslim women being discriminated in the workplace, but also Jewish men who wear kippas, Sikh men who wear turbans, people who wear crosses. It affects all of them, but disproportionately Muslim women,” she said.
Campaigners for a secular society said the court had reached a sensible decision. Stephen Evans, campaigns director at the National Secular Society in the UK, said: “Where a ban on employees wearing religious or political symbols is founded on a general company rule of religious and political neutrality, and where that rule is applied equally to all, it can’t be realistically argued that that this constitutes ‘less favourable treatment’.
“Religious and political neutrality is a perfectly reasonable aim and, where businesses and organisations wish to present themselves in such a way, this ruling demonstrates that this approach is perfectly consistent with equality and human rights law.”
This article was published on The Guardian's website on March 14, 2017.
A civil right is an enforceable right or privilege, which if interfered with by another gives rise to an action for injury. Examples of civil rights are freedom of speech, press, and assembly; the right to vote; freedom from involuntary servitude; and the right to equality in public places. Discrimination occurs when the civil rights of an individual are denied or interfered with because of their membership in a particular group or class. Various jurisdictions have enacted statutes to prevent discrimination based on a person's race, sex, religion, age, previous condition of servitude, physical limitation, national origin, and in some instances sexual orientation.
Source: Cornell University Law School