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Yvonne Frederiksen
Partner LLM

Justifiable ban on headscarfs?

The ECJ has recently ruled in two new cases on the framework for banning the wearing of religious signs at the workplace.

According to the Anti-Discrimination Act and the underlying EU directive establishing a general framework for equal treatment in employment and occupation, employers may not discriminate against employees on the grounds of, for example, religion and belief. In these two cases, the ECJ was (once again) given the opportunity to consider whether it may constitute discrimination if an employer has implemented a policy of neutrality prohibiting the wearing of political, ideological or religious signs.

The first case (referred by a court in Germany) concerned a female special needs carer at a children’s day care centre. She had previously been given warnings and had been suspended because she, contrary to the employer’s policy of neutrality, refused to take off the Islamic headscarf when she had contact with parents or children at the day care centre. The special needs carer submitted that she had been subject to direct discrimination, since the policy should be regarded as directly targeting women wearing the Islamic headscarf.

The ECJ stated that it had been established in previous case law from the ECJ that a private undertaking’s internal rule prohibiting the wearing of any visible signs of political, ideological or religious beliefs in the workplace does not constitute direct discrimination if the rule has been applied to all employees in a general and undifferentiated way. Since the ban at the day care centre was also applied in relation to an employee who wore a cross around her neck, there was no evidence indicating that the special needs carer had been subject to direct discrimination.

Difference of treatment justified by desire to pursue a policy of neutrality
The ECJ further stated that indirect discrimination on the grounds of religion or belief as a result of an internal rule prohibiting the employee from wearing any kind of religious signs may be justified by the employer’s desire to pursue a policy of, for instance, religious neutrality.

However, this presupposes that the difference of treatment is objectively justified and, thus, that the employer has a genuine need in this regard.

When assessing whether the employer has a genuine need for the desire to pursue a policy of neutrality, the rights and legitimate expectations of customers and users must be taken into account. The ECJ held that such a need may exist, for example, in situations of education of children where the parents have a right under the Charter of the Fundamental Rights of the European Union to have the education provided in accordance with their religious, philosophical and educational beliefs.

The above does, however, presuppose that the policy is applied in a consistent and systematic way and is limited to what is strictly necessary in order for the employer to avoid any adverse consequences.

Conspicuous, large-sized signs
In the other case (also referred by a German court) the employer, a chain of drugstores, had introduced a rule banning the wearing of conspicuous, large-sized religious, philosophical or religious signs at the workplace, which a cashier – who wore the Islamic headscarf – did not want to comply with. The rule was based on the employer’s wish to prevent social conflicts at the workplace.

The ECJ stated that a policy of neutrality based on a wish to prevent social conflicts may constitute a legitimate aim. However, that aim cannot be said to be effectively pursued if it does not encompass all – including small – visible forms of expression of religious beliefs, etc. The ECJ noted that the rule, due to the way it was phrased, statistically affected almost exclusively female workers wearing the Islamic headscarf. It was therefore possible that it could constitute direct discrimination.

The parties to the case had also requested the ECJ to decide on the question of whether national provisions protecting the freedom of religion may be taken into account to a greater extent when assessing whether difference of treatment on grounds of religion is appropriate. The ECJ confirmed this.

Norrbom Vinding notes

  • that the judgments confirm that the employer may implement a rule or policy banning the use of political, ideological and religious signs at the workplace if the ban is objectively justified by a legitimate aim and the rule or policy is necessary in order to achieve that aim which, in practice, means that the rule or policy must not be more invasive than necessary to achieve the legitimate aim and must also be applied consistently in relation to all groups concerned; and
  • that a ban only covering certain religious signs, such as conspicuous signs, could constitute direct discrimination which, according to case law from the ECJ, cannot be reasonably justified by a legitimate aim.

The content of the above is not, and should not be a substitute for legal advice.