Banning Islamic headscarves in the workplace is not “direct discrimination” and can be “objectively justified”, ruled the European Court of Justice on Tuesday (14 March).
Judges said that the dismissal of a Muslim employee who insisted on wearing a headscarf – despite an internal company rule prohibiting any sign of political, philosophical or religious beliefs – did not constitute a breach of EU law.
They followed the opinion of the court’s advocate general, published last year.
The Luxembourg-based court had been solicited by the Court of Cassation, Belgium’s court of last resort, over the case of Samira Achbita, who was dismissed in 2006 by the service company G4S.
G4S had told Achbita that wearing a veil was contrary to the company’s policy of neutrality in its contact with customers.
Achbita was hired in 2003 and started to wear a veil in 2006. G4S amended its internal rules to ban signs after Achbita started to wear the veil.
EU judges said that the internal rule, which banned signs from all religions or political affiliations, did “not introduce a difference of treatment that is directly based on religion or belief” and that it was therefore in line with the EU directive on equal treatment in employment and occupation.
“It is not evident from the material in the file available to the Court that that internal rule was applied differently to Ms Achbita as compared to other G4S employees,” they said in their ruling.
The EU court said however that an internal company rule could be discriminatory if it introduced “a difference of treatment that is indirectly based on religion or belief”, putting people that are “adhering to a particular religion or belief … at a particular disadvantage”.
But it added that such indirect discrimination could be “objectively justified by a legitimate aim, such as the pursuit by the employer, in its relations with its customers, of a policy of political, philosophical and religious neutrality, provided that the means of achieving that aim are appropriate and necessary.”
In Achbita’s case, the EU court said that the prohibition must cover “only G4S workers who interact with customers”.
“If that is the case, the prohibition must be considered strictly necessary for the purpose of achieving the aim pursued,” it said, adding that it will be up to the Belgian Court of Cassation to check those conditions.
In another case referred to it, the ECJ provided other criteria to determine whether banning veils at work was legitimate or not.
Judges said that “wishes of a customer no longer to have the services” of a company where employees wear an Islamic headscarf could not be considered “genuine and determining occupational requirement”.
The court gave their opinion about the case of a design engineer, Asma Bougnaoui, who was dismissed in 2008 by a French company, Micropole, after a customer’s complaint.
Bougnaoui had been told before starting an internship at the company that wearing a headscarf would be problematic when coming into contact with customers. At first, she wore a bandana and then later switched to a veil.
The ECJ did not give a ruling and instead asked the French Court of Cassation to check the conditions for discrimination set out in the case of Achbita vs G4S.
Amnesty International said that the two decisions were “disappointing”.
They give “greater leeway to employers to discriminate against women – and men – on the grounds of religious belief,” the NGO’s Europe and Central Asia director, John Dalhuisen, said in a statement.
“At a time when identity and appearance has become a political battleground, people need more protection against prejudice, not less,” he noted.
Eric Maurice / EUobserver