Ban on wearing the Islamic headscarf in a work context


Ban on wearing Islamic headscarf in light of European Court of Justice case law 

Ban on wearing the Islamic headscarf in a work context
February 22, 2023

In Case C-344/20, the European Court of Justice (the “ECJ”) ruled that Article 2.2.a)[1] of Council Directive 2000/78 of November 27, 2000 (the “Directive”), which establishes a general framework for equal treatment in employment and occupation, should be interpreted to mean that a company’s employment regulation prohibiting employees from expressing their religious or philosophical beliefs—through clothing or any other way—does not constitute direct discrimination “based on religion or beliefs” (as defined by the Directive) against employees who wish to exercise their freedom of religion and conscience by visibly wearing a symbol or clothing with religious connotations, provided the company applies the employment regulation generally and equally to everyone.

The situation in this ruling is similar to the March 14, 2017, ruling by the same court (in Case C-157/15[2]). In this ruling, the ECJ stated that any provision of this kind would not be considered indirect discrimination—as defined in Article 2.2.b) of the Directive—if:

                                i.            the prohibition is justified by a legitimate aim; and

                              ii.            the means of achieving this aim are appropriate and necessary.    

The ECJ states that an employer’s policy of remaining neutral when it comes to political, religious, and philosophical views when dealing with clients meets the first requirement (legitimacy). The second and third requirements—appropriateness and necessity—are met when a policy that applies only to employees who deal with clients is followed consistently and systematically.

However, an employer’s willingness to accede to a client’s wish not to have the services provided by a female employee wearing an Islamic headscarf cannot be interpreted as constituting a “genuine and determining occupational requirement” under Article 4.1 of the Directive.[3] This article allows for differences in treatment based on the characteristics related to any discriminatory ground when it is necessary for the nature of the work.

This was also the position the ECJ adopted in its ruling of March 14, 2017 (in Case C-188), where the issue was whether it was lawful to dismiss a female employee because she refused to remove her headscarf on business trips to the company’s clients. In this decision, the court cited recital 23 of the Directive, which states, “[i]n very limited circumstances, a difference of treatment may be justified where a characteristic related to religion or belief, disability, age or sexual orientation constitutes a genuine and determining occupational requirement, when the objective is legitimate, and the requirement is proportionate. Such circumstances should be included in the information provided by the Member States to the Commission.” The court went on to conclude that subjective considerations like the one at issue in that case do not fall within the concept of “genuine and determining occupational requirement,” as this concept concerns requirements that are objectively dictated by the nature or circumstances of the work.

[1] Under which “direct discrimination must be considered to occur where one person is treated less favorably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1.”

[2] Both cases involved a refusal to comply with a company’s internal regulations. This refusal led to (i) the employee’s dismissal, and (ii) the rejection of the applicant’s spontaneous application for an internship.

[3] Under which, "[n]otwithstanding Articles 2.1 and 2.2, Member States may provide that a difference of treatment which is based on a characteristic related to any of the grounds referred to in Article 1 will not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.”

February 22, 2023