It was discrimination on the grounds of religion when a day care centre required a childcare assistant who was a Jehovah’s Witness to wear a costume for the centre’s Shrovetide party. 

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According to the Anti-Discrimination Act, employers are not allowed to discriminate against employees on the basis of religion or belief. In this case, the Board of Equal Treatment had to decide whether it constituted discrimination on the grounds of religion or belief to require an employee to wear a costume for a Shrovetide party (i.e. carnival).

The case concerned a municipal day care centre that had announced that all its employees had to wear a costume for the upcoming Shrovetide party. On the same day, one of the childcare assistants at the centre said that she was a Jehovah’s Witness and that, because of her religion, she did not want to celebrate Shrovetide, including wearing a costume for the party.

However, the day care centre insisted that the childcare assistant attend the party in costume and, because of this, the childcare assistant ended up taking the day off without pay.

The childcare assistant then filed a complaint with the Board of Equal Treatment. According to the childcare assistant, she had been subjected to indirect discrimination because of her religion, as she had to take a day off without pay on the day of the party, and for this reason she had been treated less favourably than her co-workers who were not Jehovah’s Witnesses.

The day care centre argued that it celebrated various holidays throughout the year with the aim of teaching the children at the centre about traditions in society. The employees and children at the centre were from different cultures, and it was important to the centre that everyone participated in all holidays and that the focus was never on religion.

Legitimate aim but not necessary to maintain requirement
The Board of Equal Treatment established that there was such a close connection between the childcare assistant’s religious belief as a member of Jehovah’s Witnesses and her refusal to wear a Shrovetide costume that the situation fell within the scope of the Anti-Discrimination Act.

The requirement to wear a costume for the Shrovetide party was an apparently neutral criterion, which did, however, place people with the childcare assistant’s religious belief at a disadvantage compared to others. However, the Board of Equal Treatment found that the requirement was justified by a legitimate aim of reflecting traditions in society.

However, the Board of Equal Treatment still found that unlawful religious discrimination had occurred. In this regard, the Board took into account that the day care centre had not proven it was necessary for the childcare assistant to wear a costume. The Board further attached importance to the fact that the childcare assistant had immediately explained that she could not wear a costume due to her religious belief, and that she had offered to perform tasks that were unrelated to the children on the day of the party. The day care centre had not given any reasons as to why this alternative option could not be accommodated.

The Board of Equal Treatment therefore found that it had not been necessary for the day care centre to maintain the requirement for the childcare assistant to wear a costume and awarded the childcare assistant a compensation of DKK 10,000.

Norrbom Vinding notes

• that the decision illustrates it may constitute indirect discrimination on the grounds of religion or belief if an employee – as a result of a requirement that the employee actively participates in a cultural tradition – is treated less favourably than others (who do not have the religious belief in question); and
• that in this situation, the discrimination will only be justifiable if the employer’s requirement for the employee to actively participate in a cultural tradition is justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. 

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