Friday, March 17, 2017

Headscarves and discrimination in the workplace - LEXOLOGY

Originally published: March 16, 2017

Contrary to the headlines, the ECJ did not rule that employers are able to ban headscarves at work. Rather, the judgement explains that a headscarf ban at work - which was part of a wider policy on religious neutrality - did not constitute direct discrimination. However, employers should not disregard the risk of the indirect discriminatory impact of such a policy. To further avoid such a claim an employer will have to objectively justify their approach, which involves identifying a legitimate aim which is implemented in a proportionate manner. In the Achbita case the ECJ ruled that an employer’s desire to project an image of neutrality towards its customers was a legitimate aim, particularly where it only applies to workers in customer facing roles.


The ECJ was asked to determine whether two cases involving the dismissal of women for each refusing to remove their headscarf at work amounted to religious discrimination. The French and Belgian cases were conjoined after separate Advocate Generals arrived at different conclusions on whether a headscarf ban amounted to direct discrimination. While Advocate General Kokott had previously said in Achbita that a headscarf ban did not amount to direct discrimination, Advocate General Sharpston reached the opposite conclusion in Bougnaoui. (Achbita v G4S Secure Solutions NV and Bougnaoui v Micropole Univers.)