The Court of Justice of the European Union (CJEU) has been asked to make a decision on two cases related to the wearing of religious signs at work. In both cases, a French and a Belgian one, the headscarf was the bone of contention. The CJEU finally issued a joint judgment this tuesday.
Two stories, one common issue
The Belgian Samira Achbita did not wear a headscarf in 2003 when she started to work as a receptionist for the security company G4S. In 2006, she declared to her employer that she intended to start wearing it… She was then dismissed.
As for the French Asma Bougnaoui, she started working as a design engineer for the IT consultancy firm Micropole in 2008. At this time, she already had a headscarf on. One day, a customer of the company complained about that. This complaint was transmitted by the company to Mrs Bougnaoui, who chose to reject it and refused to remove her headscarf… She was also dismissed.
National Courts from Belgium and France have asked the ECJ to give a ruling on these cases. Though the stories slightly differ, the main issue was to know if a company was justified to dismiss an employee for wearing a headscarf or if this constituted a case of discrimination.
The Court’s decision
For EU’s highest Court, forbidding headscarf on the workplace does not constitute a direct discriminatory act as long as the internal rule of the company proscribes any visible political, philosophical or religious sign and if this policy is justified by an essential occupational requirement:
“An internal rule of an undertaking which prohibits the visible wearing of any political, philosophical or religious sign does not constitute direct discrimination. However, in the absence of such a rule, the willingness of an employer to take account of the wishes of a customer no longer to have the employer’s services provided by a worker wearing an Islamic headscarf cannot be considered an occupational requirement that could rule out discrimination”.
Hence, the Court stated in favor of the company in the Belgian case, arguing that the company was following its genuine policy of “image neutrality”. As for the French case however, the Court stated that the complainant had indeed been discriminated against, since the demand to remove the headscarf only followed the complaint from a customer and not a consistent policy of neutrality at work.
What are the implications of this ruling?
Right wing and far right personalities welcome this ruling as a victory, since this now allows companies to ban the headscarf in the workplace, as we can see for instance from Gilbert Collard’s tweet , a French MP working for Marine le Pen : “Even the CJEU votes for Marine”. However, one must remember that this long awaited judgment also demands the prohibiting of religious signs to be stated and justified by a consistent internal rule of the company. The prohibition of religious signs is thus limited and must happen only under certain specific conditions :
“Such indirect discrimination may be objectively justified by a legitimate aim, such as the pursuit by the employer, in its relations with its customers, of a policy of political, philosophical and religious neutrality, provided that the means of achieving that aim are appropriate and necessary”.
The diverging views on the ruling of the CJEU
For the supporters of the ruling, the issue of religious signs at work needed to be clarified and employers and human resources now have a clearer frame to deal with religious signs at work. In its ruling, the Court judged in favor of the company when a neutral image was part of its objective “identity”, but in favor of the complainant when the demand to remove the headscarf was the result of a subjective process, not connected to an essential occupational requirement.
However, for the critics of this ruling, the CJEU now opens the way to the implementation of more restrictive internal rules in private companies. It gives the latter more power to decide on their employees’ outfit, on the subjective basis of the “image” of the company. Also, and even though the ruling does not specifically concern Muslims, it seems to endorse a general European tendency to target Muslim believers’ visibility in the public space and may de facto contribute to exclude them from the job market.
By Farida Belkacem
Sources :
http://curia.europa.eu/jcms/upload/docs/application/pdf/2017-03/cp170030en.pdf
