EU court allows private employers to ban the hijab and other religious symbols

The Court of Justice found that a Belgian firm which had a rule barring employees who dealt with customers from wearing visible religious and political symbols in order to project a public image of neutrality may not be guilty of discrimination, if it met certain other conditions.

People walk through a fruit market in The Hague, The Netherlands, on March 4, 2017. The EU judgment on the banning of the hijab in workplaces came on the eve of a Dutch election in which Muslim immigration has been a key issue. Emilio Morenatti / AP Photo
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BRUSSELS // Private employers may ban staff from wearing the hijab and other visible religious symbols under certain conditions, the European Union’s top court ruled on Tuesday.

In its first ruling on what has become a major political issue across Europe, the Court of Justice (ECJ) found that a Belgian firm which had a rule barring employees who dealt with customers from wearing visible religious and political symbols in order to project a public image of neutrality may not be guilty of discrimination, if it met certain other conditions.

But the court found a French company which dismissed a software engineer for refusing to remove her hijab may have breached EU laws barring discrimination on religious grounds if it did so not because of a general internal rule but just because a particular client objected.

The judgment in the two joined cases came on the eve of an election in The Netherlands in which Muslim immigration has been a key issue and become a bellwether for attitudes to migration and refugees across Europe. France is due to elect a president next month and there too an anti-immigration party is riding high in opinion polls.

The Open Society Justice Initiative, a group backed by the philanthropist George Soros which had supported the women, said it was disappointed by Tuesday’s ruling. It said the decision “weakens the guarantee of equality that is at the heart of the EU’s anti-discrimination directive.”

“In many member states, national laws will still recognise that banning religious headscarves at work is discrimination. But in places where national law is weak, this ruling will exclude many Muslim women from the workplace,” said Maryam Hmadoun, policy officer at the organisation.

Referring to the case of Samira Achbita, who was dismissed as a receptionist in Belgium by services firm G4S, the European court said: “An internal rule of an undertaking which prohibits the visible wearing of any political, philosophical or religious sign does not constitute direct discrimination.”

But, it added, in the case of Asma Bougnaoui, who was dismissed by French software company Micropole: “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.”

In Ms Achbita’s case, the court said it was for Belgian judges to determine whether she may have been a victim of indirect discrimination if the rule put people of a particular faith at a disadvantage.

But the rule could still be justified if it was “genuinely pursued in a consistent and systematic manner” with a “legitimate aim”, such as projecting an “image of neutrality” as part of the company’s freedom to conduct business.

In Ms Bougnaoui’s case, the EU judges said it was up to French courts to determine whether she was fired for failing to comply with a similar internal rule.

If her dismissal was based only on meeting a particular customer’s preference, it saw “only very limited circumstances” in which a religious symbol could be objectively taken as reason for her not to work.

Inevitably, the reactions to the court rulings were mixed.

Amel Yacef, chair of the European Network Against Racism, said, “It effectively bars all Muslim women wearing the headscarf from the workplace. This is nothing short of a Muslim ban applied only to women in private employment. Muslim women already experience significant obstacles in finding and keeping a job and this decision will only make matters worse, giving employers a licence to discriminate.”

Carla Amina Baghajati, of the Austrian Islamic body IGGO said, “Participation in the workplace is a key to social cohesion, for women’s right to work and their inclusion in society. If this ruling is taken by employers as an invitation to take restrictive action, that would be a serious consequence for Muslim women who want to wear a headscarf because they would be shut out.”

John Dalhuisen of Amnesty International called the ruling disappointing and said it gave employers “greater leeway” to discriminate against women on grounds of religious belief. “At a time when identity and appearance have become a political battleground, people need more protection against prejudice, not less,” he said.

But Francois Fillon, the conservative candidate for the French presidency said the judgment “defends the secular nature of society and puts a stop to the pushing of religious interests ... It is a huge relief, not only to thousands of companies but also their employees. This judgment will surely contribute to social cohesion and peace throughout Europe, and notably France.”

And G4S, the company involved in the Belgian case said the ban did not apply throughout all its European operations, saying, “In many countries such as the UK where there is no strong tradition of religious and political neutrality, G4S permits the wearing of religious dress such as Islamic headscarves.”

* Reuters