Case Watch: Discrimination Dressed up as Neutrality in European Headscarf Bans

In Europe, discrimination based on a worker’s religion is still a serious problem. In a 2015 official survey, 33% of European Union citizens said that employers treat workers who express a religious belief less favourably. This happens despite EU Employment Equality Directive 2000/78, which prohibits discrimination on grounds of religion. Under this law, treating a worker less favourably is direct discrimination and illegal, with very limited exceptions.

The Court of Justice of the European Union has been asked to interpret this law in two cases, each about a Muslim woman dismissed by a private sector employer because she wore a religious headscarf at work. In the first cases to reach the Court of Justice on the question of religious discrimination, national courts in Belgium and France have asked whether the dismissals were direct discrimination or whether exceptions to Directive 2000/78 allow such dismissals. In our legal briefing on the issue , we argue that the Court should rule that targeting clothing because it is religious is direct discrimination not allowed by EU law.

In Case C-157/15, Ms. Samira Achbita worked for G4S in Belgium as a receptionist, with no uniform provided. When she began wearing the Muslim headscarf, the company claimed to have a written policy of “neutrality” in the workplace, meaning a bar on clothing expressing a religious, philosophical, or political belief. G4S dismissed Ms. Achbita, and the next day the written policy came into force.  Juliane Kokott, the German advocate-general at the Court of Justice, gave an opinion on May 31, 2016 that G4S’s policy was only indirect discrimination and can be justified.

In Case C-188/15, Ms. Bougnaoui was ordered by her French employer not to wear her headscarf because a customer objected; Ms. Bougnaoui was dismissed when she refused. The UK advocate-general at the Court of Justice, Eleanor Sharpston, gave her preliminary opinion on this case on July 13, concluding that Ms. Bougnaoui had indeed been subject to direct discrimination—an argument that was evidently at odds with advocate-general Kokott (a full legal discussion of the Sharpston opinion is available here from Darryl Hutcheon of Matrix Chambers). 

Both cases will then be ruled on by the Court.

These cases raise fundamental questions of employees’ rights. G4S dismissed Ms. Achbita only because she expressed her religion by wearing a headscarf. They did not argue that the headscarf affected her ability to do her job. G4S only claimed that it had a company policy of appearing “neutral,” and that their policy did this by treating each worker’s religious beliefs equally. In her opinion, Advocate-General Kokott argued that a rule targeting expression of religion does not treat a worker less favourably on grounds of religion. She also argued that, in any event, an employee’s willingness to show “neutrality” is a legitimate occupational requirement.

The argument that there was no direct discrimination is clearly wrong. The expression of religion is an aspect of religion, as Advocate-General Kokott accepted. G4S dismissed Ms. Achbita because she wore a headscarf for religious reasons: treating her differently from a woman who wore a headscarf for other reasons. Ms. Achbita was singled out for unfavourable treatment because of her religion.

G4S claims―and Advocate-General Kokott agreed―that eliminating religious clothing maintains a “neutral” work environment, and that this is a legitimate aim allowing what would otherwise be unlawful direct or indirect discrimination.

The claim is very dangerous. It pretends that employers can decide there is a single “neutral” way that Europeans behave and dress. It is not “neutral” for a woman to wear the Muslim headscarf or a man to wear the Jewish kippah. On this false logic, these people are partisans for their religion:  biased and fundamentally different from other Europeans. People are only “neutral” when their religion or beliefs are held and communicated without symbolic clothing. Such an interpretation of EU law would promote hostility to people who show their religion through their clothing, and to the employers for whom they work. It would legitimize the idea that these people and their employers are partisans. This would be particularly harmful for Muslims, who are the main victims of religious discrimination in Europe.

Advocate-General Kokott’s position is contradicted by the most important text of EU law:  the Treaty on European Union. Article 2 affirms that Europe is “a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.”

In a society founded on pluralism, non-discrimination, and tolerance, truly neutral employers do not target clothing which expresses the wearer’s religion. As the German Constitutional Court has held, “[w]here the State allows a religious expression of an individual teacher or staff member related to wearing a headscarf, it does not make said statement its own nor does it imply any intention of the State.”  (Federal Constitutional Court of Germany, 1 BvR 471/10 and 1 BvR 1181/10, Decision of 27 January 2015, para. 104.)

Islam has been a European religion for 1,400 years, yet women who express their Muslim beliefs through wearing the headscarf are still stigmatized as not “neutral,” or truly European. In an important report by the European Network against Racism, these women speak of the Islamophobia they face in public and in the workplace.

If the Court upholds G4S’s conduct as lawful, it may open the door to wider claims of “neutrality.” If a ban on the Muslim headscarf is ruled “neutral,” employers may be encouraged to adopt bans targeting other expressions of identity, such as language or clothing. Should an employer be allowed to decide that “neutrality” of the work place requires workers to speak only one language? Can an employer forbid staff to wear distinctively Roma clothing or clothing associated with other national minorities? In short, does equality law not forbid employers from demanding that workers “leave their identity at home”―their ethnicity, language, and religion―just because the employer does not like the way the identity is expressed?

For the first time, the Court of Justice can apply the fundamental values of European Union law to the issue of employment discrimination on grounds of religion. The Court should hold that a neutral workplace is open to workers who do the job, regardless of their religious beliefs and how they express them through clothing.

This post was updated on August 8, 2016, to add details of the July 13 ruling from advocate-general Sharpston.