European Court Clarifies Legality of Banning Islamic Headscarves in the Workplace

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.

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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.

Lavanga Wijekoon is an associate in the Chicago office of Littler Mendelson. He has experience representing employers in a wide range of labor and employment class action and single-plaintiff matters.

Lavanga handles district and appellate level actions in state and federal courts and before agencies such as the Equal Employment Opportunity Commission (EEOC), the Illinois Department of Human Rights (IDHR), and the Illinois Human Rights Commission (IHRC). 

Lavanga also provides strategic advice and counsel to multinational employers on a wide range of international employment and compliance matters.

Prior to joining Littler, Lavanga was an associate at an international law firm in Chicago. He also served as a law clerk to Hon. Marywave Van Deren of the Washington State Court of Appeals and as an extern to Hon. Marsha J. Pechman of the U.S. District Court for the Western District of Washington.

Michael Congiu is the co-chair of the Business and Human Rights Practice Group and a shareholder at Littler Mendelson. He has a broad labor and employment litigation and counseling practice with three specific and distinct areas of expertise, including employee benefits litigation International labor standards and business and human rights and leave and disability accommodation litigation and counseling.

Stephan Swinkels has worked in labor and employment law for nearly 20 years and has advised on restructurings, compensation and benefits matters, global mobility, social media policies and health and safety issues. He has a particular focus on international law, including cross-border issues and multi-country compliance, as well as developing training programs for international clients.

Stephan was previously executive director of an international alliance of labor and employment law firms, and an attorney at a large international full-service law firm. He is a regular speaker at international labor and employment conferences for attorneys, such as the International Bar Association (IBA) and European Employment Lawyers Association (EELA), and for corporate counsel, such as the Association of Corporate Counsel (ACC).

He has published numerous articles and blogs in various legal magazines including Managing Partner, The Lawyer and the IBA Journal, and is co-author and editor of the books: The Independent Contractor vs. Employee, an International Analysis (2014) and Employment Litigation, Procedures, Remedies and Best Practices (2015)

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