ECJ: Employer’s Objective Rule, Not Customer Preferences May Prohibit Headscarf
In two separate opinions issued this week, the European Court of Justice (ECJ) found that while an employer may prohibit a Muslim woman from wearing a headscarf at work through a rule applied consistently to all religious beliefs, an employer may not prohibit a Muslim woman from wearing religious clothing based on a customer’s preferences. These are the first cases before the ECJ that deal with Muslim women employees’ desire to wear an Islamic headscarf at work. The cases involve a woman in Beligum who asserted her desire to wear a headscarf to work despite the company’s internal policy prohibiting religious clothing and symbols and a woman in France who refused to stop wearing a headscarf after her employer prohibited her from doing so in response to a customer’s complaint. See European Court of Justice (Grand Chamber), Samira Achbita et al. v. G4S Secure Solutions NV, Case C-157/15, Request for Preliminary Ruling, Judgment of 14 March 2017; European Court of Justice (Grand Chamber), Asma Bougnaoui et al. v. Micropole SA, Case C-188/15, Request for Preliminary Ruling, Judgment of 14 March 2017. The European Court of Human Rights (ECtHR), a regional human rights court, has previously addressed the issue of religious clothing and symbols in the work place, holding that some public interests, like public health and safety and neutrality, outweigh an individual’s fundamental right to manifest their religious beliefs, while other private interests, like maintaining a corporate image, do not. The judgments of the ECJ come amidst growing anti-immigrant and anti-Islam sentiments in the region. [New York Times]
Factual Background on the ECJ Cases
Samira Achbita, a Muslim woman, was hired in 2003 as a receptionist by G4S Secure Solutions, a Belgian company that provides clients with reception services. See Samira Achbita et al. v. G4S Secure Solutions NV, Judgment of 14 March 2017, paras. 10-11. In April 2006, in response to Achbita’s expressed desire to wear an Islamic headscarf at work, G4S stated that such a practice would contravene the company’s unwritten rule that prohibits visible signs of religious beliefs in the workplace. See id. at paras. 12-13. In May 2006, G4S approved a regulatory amendment that prohibited employees from wearing visible signs of and observing their political, philosophical, or religious beliefs in the workplace. See id. at para. 15. The day before this regulation went into effect in June 2006, Achbita was fired for her insistence on wearing her headscarf. See id. at para. 16. Achbita’s first challenge to her termination was dismissed by the Higher Labour Court in Antwerp, Belgium, so she appealed to the Court of Cassation in Belgium. The Belgian court then asked the ECJ for an interpretation of whether the internal policy of the company violated the relevant EU directive on equal treatment in the workplace. See id. at paras. 17-21.
Asma Bougnaoui, a Muslim woman, was recruited to work at Micropole, a private company, in 2007 and began her internship in February 2008. See Asma Bougnaoui et al. v. Micropole SA, Judgment of 14 March 2017, at para. 13. Bougnaoui wore an Islamic headscarf to work. In July 2008 she was offered an indefinite position as a design engineer. See id. Micropole requested that Bougnaoui stop wearing her headscarf in order to maintain client neutrality after a customer complained, but Bougnaoui did not stop wearing her headscarf and was subsequently fired. See id. at para. 14. Bougnaoui’s first challenge to her termination was dismissed by the Labour Tribunal in Paris, France. See id. at para 15. The dismissal was subsequently upheld by the Court of Appeal in Paris, so she appealed to the Court of Cassation. The French court then asked the ECJ for an interpretation of whether Micropole’s consideration of the customer’s wishes to stop working with the company due to an employee wearing an Islamic headscarf may be a “genuine and determining occupational requirement,” as required under the EU directive. See id. at paras. 16-19.
The EU Council Directive 2000/78/EC at issue in both cases provides for legal differential treatment based on a characteristic that is “a genuine and determining occupational requirement” and related to a protected ground as long as the difference in treatment pursues a legitimate aim and the requirement is proportionate to that aim. See id. at para. 7.
European Court of Justice’s Analysis
In Achbita’s case, the ECJ ruled that G4S’s internal policy did not amount to direct discrimination since it was applied without distinction to all political, philosophical, or religious manifestations, and treated everyone the same with regards to the requirement to dress neutrally. See Samira Achbita et al. v. G4S Secure Solutions NV, Judgment of 14 March 2017, paras. 30-32. According to the ECJ, although the internal policy was not discriminatory on its face, it could amount to indirect discrimination when applied if there was evidence that it resulted in disparate treatment to the disadvantage of followers of a particular religion; however, according to the EU law at issue, no indirect discrimination would be found if the internal rule sought a legitimate aim through appropriate and necessary means. See id. at paras. 34-35.
In providing guidance on the matter, the ECJ stated that a goal to protect an image of neutrality to preserve the freedom to conduct business is a legitimate aim, especially when employees interact with clients. Further, a ban on visible manifestations of beliefs in the workplace for the purpose of systematically applying the policy on political, philosophical, or religious neutrality, the ECJ stated, is also a legitimate aim. However, the domestic court, the ECJ noted, should consider whether the rule was applied in a way that was “strictly necessary.” For example, whether an attempt was made by the employer to reassign an employee to a position that does not require visual contact with clients before dismissal. See id. at paras. 36-44.
In the Micropole case, the ECJ first noted that it is not clear whether the French Court will determine if the prohibition on wearing a headscarf was based on an internal Micropole rule or solely on a customer’s preferences; the ECJ suggests that if the domestic court finds it is the former, the analysis of whether discrimination, direct or indirect, occurred must comply with the aforementioned requirements in the G4S Secure Solutions case. See Asma Bougnaoui et al. v. Micropole SA, Judgment of 14 March 2017, paras. 31-33. If indirect, the differential treatment must be in pursuit of a legitimate aim and must be necessary and appropriate to achieve that aim. See id. at para. 33.
The ECJ then found that the sole consideration of the customer’s preferences regarding the headscarf is not a “genuine and determining occupational requirement” within the meaning of the EU directive. An occupational requirement related to religion, the ECJ determined, is narrowly interpreted to include only objective requirements and does not include subjective considerations, like individual customer preferences. Objective requirements arise from the nature of the job and the activities required. See id. at paras. 35-41. Accordingly, the company may not prevent an employee from wearing a headscarf solely based on a customer’s preferences.
European Jurisprudence Related to Religious Clothing in the Workplace
The ECtHR previously dealt with the issue of religious clothing and symbols at work and freedom of religion under the European Convention (Article 9) in Eweida and Others v. the United Kingdom and Ebrahimian v. France. The ECJ cited to the former case in its Samira Achbita decision, acknowledging that the ECtHR has also found that the pursuit of neutrality in the workplace for the purpose of guaranteeing the freedom to conduct business is a legitimate aim that may restrict the right to freedom of religion. See Samira Achbita et al. v. G4S Secure Solutions NV, Judgment of 14 March 2017, para. 39. The ECJ also acknowledged that according to the European Convention on Human Rights (European Convention), religion includes having a religious belief and manifesting that belief in public. See Samira Achbita et al. v. G4S Secure Solutions NV, Judgment of 14 March 2017, para. 26.
In Eweida, the Court found that an applicant, who was employed by British Airways and who refused to conceal her Christian cross in contravention to the company’s uniform code, was entitled to wear her cross at work because her fundamental right to manifest her religious belief under Article 9 outweighed the legitimate aim of her employer to maintain a particular corporate image. The Court also noted that her cross was discreet and that the restriction on wearing religious symbols was not vital to the company’s uniform policy since the company made subsequent amendments to allow the wearing of a cross. See ECtHR, Eweida and Others v. the United Kingdom, nos. 48420/10, 59842/10, 51671/10, 36516/10, Judgment of 15 January 2013, paras. 93-94.
This determination is distinct from a second determination in Eweida concerning a nurse in a geriatric ward, who was prohibited from wearing her cross due to health related concerns that necklaces could increase the risk of injury when handling patients. See id. at para. 96. The Court noted that the public interest in the health and safety of nurses and patients was of a greater magnitude than the private interest in a corporate image and that the public interest in health and safety ultimately outweighed the applicant’s right to manifestation of religious belief. Therefore, the State, the ECtHR found, did not violate the nurse’s rights. See id. at 98.
In Ebrahimian, a hospital social worker wished to wear a Muslim veil but was not allwed to do so. The European Court ultimately found that the State did not violate Article 9. The Court gave significant deference to French authorities’ determination that the veil was incompatible with the requirement of neutrality required of public officials, and weighed heavily the need to protect hospital patients from risk of influence or impartiality. [ECHR Press Release]
Islamophobic Trends in Europe
Some believe that the ECJ’s recent ruling targets Muslims specifically and connected it to trends of Islamophobia in the region. [Independent; Al Jazeera] In Europe, anti-immigrant and anti-Muslim sentiments have recently permeated political discussions. [Washington Post] States in the region have restricted Muslim women’s ability to wear religious clothing that covers their bodies or face, including the burkini and full-face covering veils. [New York Times] The regional trend towards islamophobia reflects a global push towards banning Muslim clothing and restricting the resttlement of Muslim refugees. [IJRC]
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