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Employer May Ban Employees From Wearing Headscarves

In a recent ruling made on March 14, 2017, the European Court of Justice (ECJ) decided (docket nos. C-157/15, C-188/15) that employers may prohibit staff from wearing Islamic headscarves under certain circumstances. The ECJ held that such prohibitions do not constitute “direct discrimination”; instead, limits on visible religious wear shall be considered permitted under EU law as long as all such items would be covered by a company policy. Any ban would thus need to cover crucifixes, kippahs and turbans too.

The court, however, additionally stated that such internal regulations would constitute indirect discrimination if employees of certain beliefs would be especially affected by the policy. Such a determination would need to be based on the employer’s desire to show clients that the employer’s company as a whole pursues the goal of religious neutrality. However, indirect discrimination is permissible if it is objectively justified by a legitimate aim. If the means of achieving it are appropriate and necessary, a company’s neutrality policy may thus remain in effect.

The decision followed the dismissal of two employees in Belgium and France who refused to remove their headscarves. The Belgian woman worked as a receptionist for a company that had an internal policy prohibiting the wearing of any religious attire. The French claimant, a design engineer, was dismissed after she refused to stop wearing the headscarf after a client had complained about her attire. Following the referral back to the French Court of Cassation, this court must now establish whether the employer’s policy was a genuine and determining occupational requirement.