Roughly two years after the Supreme Court’s decision that Abercrombie & Fitch wrongfully discriminated against a Muslim woman for denying her a job because she wore a headscarf and that did not fall within its “Look Policy,” the expression of one’s cultural identity in the workplace remains a hot topic. The highly-watched case centered on whether Samantha Elauf, then aged 17, was required to ask for a religious accommodation in order for the company to be sued under the 1964 Civil Rights Act.
The Supreme Court’s near-unanimous decision was praised by employment lawyers and religious advocacy groups, alike, with the former stating that the decision stands to make accommodation rules in the U.S. clearer for employees and employers. Yet, the law in the European Union (“EU”) is not nearly as settled.
In fact, in Europe, the European Court of Justice (“ECJ”), the highest court in the EU, recently grappled with two cases – Achbita v. G4S and Bouagnaoui v. Micropole SA – both of which relate to the wearing of headscarves in the workplace. Following contrasting decisions from two lower courts, the ECJ was asked to determine whether the two cases – in which two different employers barred women from wearing headscarves in the workplace – amounted to religious discrimination.
Earlier this month, the ECJ ruled that the employers at issue did not violate EU anti-discrimination law when they dismissed two women from their respective jobs in France and Belgium for wearing headscarves at work. Background on the two cases and the status of the law in this area is as follows …
Achbita v. G4S
In Achbita, a case referred from Belgium and decided in May 2016, the plaintiff, Samira Achbita, was employed as a receptionist for G4S, a British multinational security services company. According to her suit, she was informed that wearing a hijab to work was contrary to G4S’s policy of religious “neutrality.” Achbita filed suit after she was dismissed from her position with the company when she refused to stop wearing her hijab.
The Belgian court held that such a ban on all religious, political and philosophical symbols – which stemmed from G4S’s internal policy that “employees are prohibited in the workplace from wearing any visible signs of their political, philosophical or religious beliefs and/or from engaging in any observance of such beliefs” – does not amount to direct discrimination.
In her decision, Advocate General Juliane Kokott held that the fact that a female employee of Muslim faith was prohibited from wearing an Islamic headscarf at work does not constitute direct discrimination based on religion (within the meaning of Article 2(2)(a) of Directive 2000/78/EC, a major section of EU labor law which sets forth a general framework for equal treatment in employment and occupation) if that ban is founded on a general company rule prohibiting visible political, philosophical and religious symbols in the workplace and not on stereotypes or prejudice against one or more particular religions or against religious beliefs in general.
Kokott noted that if such a discriminatory was found, it may be justified in order to enforce a policy of religious and ideological neutrality pursued by the employer in the company concerned, as long as it is proportionate and takes into account the size and conspicuousness of the religious symbol; the nature of the employee's activity; the context in which she has to perform that activity; and the national identity of the Member State concerned
She further held, however, that such a policy may still constitute indirect discrimination if the allegedly “neutral” policy results in persons adhering to a particular religion or belief being put at a particular disadvantage. A company may dodge liability only if it can show that the policy is objectively justified by a legitimate aim (such as the pursuit by the employer in its relations with its customers) and the means of achieving that aim are appropriate and necessary. The issue of indirect discrimination is an issue for the lower court to decide.
Bougnaoui v. Micropole SA
In Bougnaoui, a French case before the ECJ, Asma Bougnaoui, a French design engineer, was dismissed for wearing an Islamic headscarf to work at Micropole SA, a Paris-based technology consultancy firm. Bougnaoui alleged in her lawsuit that she was fired when she refused a request to stop wearing a hijab following concerns raised by the employer’s customers.
In July 2016, Advocate General Eleanor V. E. Sharpston concluded that the decision to dismiss Bougnaoui constituted both direct and indirect discrimination. In order for the dismissal to be lawful, the employer’s policy would have to amount to a “genuine and determining occupational requirement,” and according to Sharpston, this requirement should be interpreted strictly and represent a “genuine and determining” one, which is proportionate to the legitimate objective pursued.
In a decision that contrasts sharply with the ruling in the Achbita case, Sharpston concluded that this threshold was not met. Specifically, Sharpston held that the customer complaint and commercial interests could not give rise to a bona fide occupational requirement that Bougnaoui be forced to not wear a hijab.
Moreover, she stated that it is only in very limited circumstances that a characteristic related to religion may constitute a genuine and determining occupational requirement, a concept which does not cover subjective considerations. An employer’s willingness to take account of the particular wishes of a customer is a subjective consideration and therefore, cannot be considered a genuine and determining occupational requirement within the meaning of the Council Directive 2000/78/EC.
In deciding the two cases this month, the Luxembourg-based ECJ found that a company policy prohibiting the wearing of visible signs of political, philosophical or religious belief without distinction is not directly discriminatory. However, while such a ban may not be directly discriminatory, the ECJ held that it may constitute “indirect discrimination” if people adhering to a particular religion or belief, such as Muslims, are put at a particular disadvantage. Still yet, the court held that indirect discrimination is permissible if it is “objectively justified by a legitimate aim,” such as a company's policy of neutrality, provided that the means of achieving it are appropriate and necessary.
Both cases will now return to the respective lower courts – the Belgian and the French courts – which will decide the cases at national level, making use of the interpretation of EU law provided by the ECJ.
The EU has long maintained laws on sex discrimination, and discrimination regarding EU citizens on grounds of nationality, and despite the existence of laws against race discrimination and also a “framework directive” against discrimination at work on grounds of disability, age, sexual orientation or religion, these cases mark the first instances before the ECJ that deal with Muslim women’s religious accommodations.
The European Court of Human Rights, a regional human rights court, has previously addressed the issue of religious clothing and symbols in the work place, holding that some public interests, like public health and safety and neutrality, outweigh an individual’s fundamental right to manifest their religious beliefs, while other private interests, like maintaining a corporate image, do not.
Of the ECJ’s recent ruling, John Dalhuisen, director of Amnesty International's Europe and Central Asia programme, said the ECJ's decision gives "greater leeway to employers to discriminate against women - and men - on the grounds of religious belief.”