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CJEU on hijabs in the work place

In March, the Court of Justice of the EU (CJEU) dealt with the controversial topic of wearing Muslim headscarves – hijabs – in the work place. It held that employers may ban employees from wearing visible religious symbols at work. The verdict, however, should not be construed as employers having an unconditional right to impose a dress code solely based on their will.

The case in question involved a Muslim female employee of a Belgium security agency. The agency’s internal rules prohibited employees from wearing visible religious symbols at work; the reason was to pursue neutrality in customer relations. The employee in question carried out her work at the premises of her employer’s customers. Despite the rule, she started to wear a headscarf to work. The agency dismissed her for the breach of the ban. The employee took the matter to court, which referred to the CJEU for a preliminarily ruling on whether the dismissal was in breach of the EU directive on the equal treatment of employees.

The CJEU emphasised that the rule was not aimed against Muslims. The agency had applied the neutrality principle to all its employees without a difference; direct discrimination was thus ruled out. However, according to the court, the employer’s rule may constitute indirect discrimination, i.e. a situation where an apparently neutral rule in effect puts a group of people that have some common discriminatory feature (such as religion) at a particular disadvantage. The directive does not ban such measures completely: they are acceptable if they pursue a legitimate aim and achieve it by appropriate and necessary means.

According to the CJEU, the employer’s pursuit of neutrality in its customer relations can be deemed a legitimate aim. However, in the case in question, the appropriateness requirement will only be met for those workers who interact with customers. Employers can only use the necessity argument in situations that cannot be solved by a less invasive measure – such as transferring the employee to a position not involving any visual contact with customers.

How should employers interpret the ruling? A rule banning only Muslim headscarves would be seen by courts as an inadmissible direct discrimination. Even a general ban on wearing clothes with a religious subtext might be problematic, as distinctive clothing is only characteristic for some religions. Employers thus have to have strong arguments to defend their stance, choose only appropriate and necessary means, and apply them to all employees with the same intensity. Finally, note that the CJEU only interprets EU law – and that employers always have to check that they comply with national regulations as well.