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ECJ rules in headscarf ban cases

Article by: Makbool Javaid | Published: 20 March 2017

In Achbita, Centrum voor Gelijkheid van kansen en voor racismebestrijding v G4S Secure Solutions, and Bougnaoui and Association de défense des droits de l’homme (ADDH) v Micropole Univers, the ECJ had to decide whether banning Muslim women from wearing the Islamic headscarf at work amounted to religious discrimination.

Achbita

G4S has a rule that employees are prohibited from wearing any visible signs of their political, philosophical or religious beliefs and/or from engaging in any observance of such beliefs in the workplace. Ms Achbita was dismissed because of her continuing insistence on wearing the Islamic headscarf at work. She challenged the dismissal in a Belgian court who asked the ECJ whether the prohibition on wearing an Islamic headscarf, which arose from G4S’ internal rule, constitutes direct discrimination.

The ECJ held that G4S’ dress code prohibiting the wearing of any visible signs of political, philosophical or religious beliefs covers any manifestation of such beliefs without distinction. The rule therefore treats all employees in exactly the same way, by requiring all of them to dress neutrally. Accordingly, G4S’ rule does not constitute direct discrimination because of religion or belief. However, such a rule may constitute indirect discrimination if it puts persons adhering to a religion or belief at a particular disadvantage, unless it is objectively justified by a legitimate aim and the means of achieving that aim are proportionate.

Bougnaoui

Following a complaint from a customer to whom Bougnaoui had been assigned, Micropole reminded her of the principle of the need for neutrality as regards its customers and asked her not to wear an Islamic headscarf while working. Bougnaoui objected and was dismissed. She challenged her dismissal and a French Court asked the ECJ whether the willingness of Micropole to take account of the wishes of a customer to no longer have Micropole’s services provided by a worker wearing an Islamic headscarf may be considered a ‘genuine and determining occupational requirement’ (GDOR), thereby allowing for a justifiable difference in treatment because of religion under Article 4(1) of the Equal Treatment Directive.

The ECJ pointed out that it is only in very limited circumstances that a characteristic related, in particular, to religion, may constitute a GDOR. A GDOR is a concept referring to a requirement dictated by the nature of the activities concerned or the context in which they are carried out. That does not cover subjective considerations, such as an employer’s willingness to take account of a customer’s particular wishes. Therefore, in this case, the readiness of Micropole to comply with a customer’s request to no longer have Micropole’s services provided by a worker wearing an Islamic headscarf cannot be considered a GDOR, which would allow a justifiable reason for a difference in treatment on grounds of religion.


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