European Court Clarifies Legality of Banning Islamic Headscarves in the Workplace

On March 14, 2017, the Court of Justice of the European Union ("ECJ")1 issued a significant ruling clarifying when an employer may prohibit employees from wearing visible signs of their religious beliefs in the workplace.2 The ruling was issued to address two instances - one in Belgium and the other in France - in which female Muslim employees were terminated for refusing to remove their headscarves. In short, the ECJ held:

There is no direct discrimination in prohibiting an Islamic headscarf pursuant to the employer's neutral policy banning any political, philosophical or religious signs in the workplace; Such a neutral policy may cause indirect discrimination if employees of a particular religion are placed at a disadvantage; Such indirect discrimination is permissible if it is in pursuit of a legitimate aim, such as in demonstrating the employer's political, philosophical or religious neutrality towards customers; Where a legitimate, neutral policy leads to indirect discrimination, the employer may still have a duty to provide certain accommodations to an employee to alleviate the effects of discrimination, such as offering the employee an alternative position; In the absence of a neutral policy, an employer may not acquiesce to a customer's request to prohibit an Islamic headscarf, as such a request does not reflect a "genuine and determining occupational requirement." The Belgian Case

The Belgian case before the ECJ arose from the termination of a Muslim receptionist at a security company. When the receptionist was hired, the company had an unwritten rule prohibiting employees from wearing visible signs of their political, philosophical or religious beliefs in the workplace. A few years later, the receptionist informed the company she intended to wear a headscarf, to which the company responded that the headscarf would violate the company's unwritten rule, which was shortly thereafter approved by the works council as a formal workplace regulation. The receptionist insisted on wearing the headscarf and was therefore dismissed. The receptionist challenged her dismissal in the Belgian courts, and the Hof van Cassatie (Court of Cassation) sought the ECJ's opinion whether the dismissal violated the European Union ("EU") directive on equal treatment in employment and occupation.3

The ECJ found that the security company's policy was applied neutrally, without creating any differential treatment based on a particular religion or belief...