European Court Clarifies Legality of Banning Islamic Headscarves in the Workplace

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Apr 11, 2017

On March 14 the Court of Justice of the European Union (ECJ) issued a significant ruling clarifying when an employer may prohibit employees from wearing visible signs of their religious beliefs in the workplace.

The ruling was issued to address two instances – one in Belgium and the other in France – in which female Muslim employees were terminated for refusing to remove their headscarves. In short, the ECJ held:

  • There is no direct discrimination in prohibiting an Islamic headscarf pursuant to the employer’s neutral policy banning any political, philosophical or religious signs in the workplace;
  • Such a neutral policy may cause indirect discrimination if employees of a particular religion are placed at a disadvantage;
  • Such indirect discrimination is permissible if it is in pursuit of a legitimate aim, such as in demonstrating the employer’s political, philosophical or religious neutrality toward customers;
  • Where a legitimate, neutral policy leads to indirect discrimination, the employer may still have a duty to provide certain accommodations to an employee to alleviate the effects of discrimination, such as offering the employee an alternative position;
  • In the absence of a neutral policy, an employer may not acquiesce to a customer’s request to prohibit an Islamic headscarf, as such a request does not reflect a “genuine and determining occupational requirement.”

Both cases were referred back to their respective courts for further fact-finding and, depending on what the facts showed, to decide the matters in accordance with the guidance listed above.

Court reaffirms ‘neutral policies’

Many commentators have viewed the ECJ’s ruling as a “win” for employers. That is an overstatement. The ECJ’s ruling reaffirms the permissibility of neutral policies prohibiting religious symbols only if they seek a legitimate aim and are consistently enforced. Moreover, the ECJ emphasized that where such policies disadvantage employees of particular faiths, then the employer may have a duty to provide accommodations to those employees where such accommodations do not create an undue burden.

Further, in the absence of such a neutral policy, an employer may not rely on such subjective considerations as a customer’s preference to prohibit religious symbols. Together, these principles draw the bounds of an employer’s freedom to conduct their business with regard to regulating employees’ religious expression.

Ruling consistent with other jurisdictions

The ECJ’s ruling is consistent with court decisions in other jurisdictions. For example, in France, the Court of Cassation has ruled that workplace regulations may prohibit employees from wearing religious signs, as long as the prohibition is applied neutrally, is proportionate to the aim pursued, and is justified by the nature and context of the particular job duties.

In the United States, the Supreme Court has held that employers are “affirmatively obligate[d]” to make exceptions to neutral employment policies to accommodate employees’ religious beliefs and practices, and a failure to do so is discrimination.

Even a 2013 ruling by the European Court of Human Rights holding that wearing a visible cross was a British Airways employee’s right to manifest freedom of religion could be argued as consistent with the ECJ ruling, because the airline permitted the wearing of other religious symbols, including turbans and headscarves.

What multinational employers should do

In light of the ECJ’s ruling, employers operating in EU countries should revisit policies prohibiting religious symbols and ensure that those policies serve a legitimate business aim.

They should also ensure that those policies are communicated to all employees clearly and implemented in a consistent manner. While the ruling only involved Islamic headscarves, it also applies to other religious symbols, such as crosses, turbans, and yarmulkes. Therefore, for example, a manager who prohibits an Islamic headscarf cannot allow visible crosses.

Finally, where possible, employers should attempt to accommodate employees who wish to maintain their religious symbols.