Jurist European Court of Justice rules headscarves can be banned at work

[Dadparvar]

The European Court of Justice ruled Thursday that employers can forbid their staff from wearing visible symbols of religious or political belief, including headscarves, in order to present an image of neutrality.

The Court decided on the matter following referrals from the Labour Court of Hamburg and the Federal Labour Court of Germany, which had requested the European Court consider whether the dismissal of two Muslim women from their employment over their non-compliance with orders to refrain from wearing their hijab was compliant with EU law on equal treatment in employment and occupation.

The first woman was dismissed from her employment at a childcare facility following her refusal to comply with a rule prohibiting employees from wearing any visible political, philosophical, or religious sign at the workplace when they are in contact with the children or their parents. She challenged her dismissal on the grounds that the prohibition directly “targeted the wearing of the Islamic headscarf and therefore constituted direct discrimination,” and that given its greater impact on migrant women it was also capable of constituting discrimination on the grounds of ethnic origin. She further supported her claim by arguing that the German Federal Constitutional Court had previously held that a prohibition on wearing the Islamic headscarf at work, in a child daycare center, could constitute a serious interference with the freedom of belief and faith and that for such prohibition to be permissible, it had to relate to an established and specific risk.

The second woman meanwhile started proceedings challenging the legality of the instruction given to her by her employer, a company operating drugstores, to refrain from wearing, in the workplace, conspicuous, large-sized political, philosophical, or religious signs. She claimed that the company’s internal rules violated her freedom of religion and that the company’s policy did not enjoy unconditional priority over the freedom of religion and had to further be subject to a proportionality test.

The Court in its ruling held that certain prohibitions in relation to the wearing of religious symbols could be justified under specific circumstances. More concretely, the Court held that:

indirect discrimination on the grounds of religion or belief resulting from an internal rule of an undertaking prohibiting, at the workplace, the wearing of visible signs of political, philosophical or religious beliefs with the aim of ensuring a policy of neutrality within that undertaking can be justified only if that prohibition covers all visible forms of expression of political, philosophical or religious beliefs.

The Court however did provide for a limit to such prohibitions by further holding that a “prohibition which is limited to the wearing of conspicuous, large-sized signs of political, philosophical or religious beliefs” would be liable to constitute direct discrimination on the grounds of religion or belief and could not, in any event, be justified.

The European Court’s decision is only one of several decisions involving prohibitions on the wearing of religious attire such as the Hijab. The Austrian Constitutional Court last December ruled that a ban on wearing headscarves in elementary schools was a violation of the principle of equality in connection with an individual’s right to religious freedom.

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