Employer’s Bar on Religious Clothing and European Union Discrimination Law

The Open Society Justice Initiative calls on the Court of Justice of the European Union to rule that equality law is violated when an employer—on the grounds of “neutrality”—bans its staff from wearing any religious clothing.

In two cases referred by national courts, the Court of Justice is asked to interpret the European Union’s Employment Equality Directive 2000/78 which prohibits employers from discriminating on grounds of religion. In Case C-157/15, Ms Achbita was dismissed because she wore a headscarf as a Muslim: her employer considered this undermined the appearance of “neutrality.” Advocate-General Juliane Kokott gave an opinion that this was only indirect discrimination and can be justified. In Case C-188/15, Ms. Bougnaoui was ordered not to wear the headscarf because a customer did not want her to. Advocate-General Eleanor Sharpston is expected to give her opinion on July 12. Both cases will then be ruled on by the court.

The briefing from the Justice Initiative sets out the legal argument that Ms. Achbita was subjected to direct discrimination. Her employer deliberately targeted her because of her religious clothing, treating her less favourably than someone who choses her clothes for reasons of fashion.

The court should also reject the argument that the employer’s bar on religious clothing had a legitimate aim of “neutrality.” It is not neutral for an employer to single out people whose religion is expressed through clothing. This aim is not legitimate since it violates the Treaty of European Union which affirms that Europe is “a society in which pluralism, nondiscrimination, tolerance, justice, solidarity, and equality between men and women prevail.”

We conclude that the Court of Justice should advise the national courts that when an employer singles out religious clothing this is direct discrimination, and such an aim is not neutral.