Sunday 8/1/21
EUROPEAN COURT OF JUSTICE

Top EU court leaves room for employer headscarf bans

The ECJ confirmed that such a ban was permissible under EU law provided that it was applied in a uniform way to all religious beliefs. For example, a Christian could also be asked to remove a cross necklace.
Headscarfs in Germany Photo: Wolfram Steinberg/dpa.
A woman wearing a headscarf. Photo: Wolfram Steinberg/dpa.

The European Court of Justice (ECJ) left the door open for EU employers to enforce headscarf bans on their workforce in a ruling on Thursday but said it must be justified by a genuine need and should take account of the specific national context.

The ruling handed down by the top EU court concerns the case of two Muslim women in Germany who took their respective employers to court after being told not to wear their headscarves, which many observant Muslim women see as a key element of their faith.

The ECJ confirmed that such a ban was permissible under EU law provided that it was applied in a uniform way to all religious beliefs. For example, a Christian could also be asked to remove a cross necklace.

However, employers wishing to enforce such rules on their staff must have a genuine "need to present a neutral image towards customers or to prevent social disputes," a court press release stated.

Moreover, such a decision must be proportional and strike a balance with the rights and interests of people involved, and take account of the context in each EU member state, which may well have more generous allowances for religious freedom, the statement continued.

The cases will now return to German courts for final decisions based on Thursday's guidance on EU law from the Luxembourg-based judges.

Warnings

In the first case, a Muslim employee of an interdenominational day-care centre had been given several warnings because she had come to work wearing a headscarf. The Hamburg Labour Court then heard a case on whether those entries must be deleted from her personnel file. The court turned to the ECJ.

In the second, the Federal Labour Court took a similar approach in 2019 with the case of a Muslim woman from the Nuremberg area who had filed a complaint against a headscarf ban at the drugstore chain Mueller.

Ahead of a decision, one of the plaintiffs said, "I want to show that we belong, and it is discrimination when women with headscarves are allowed to work as cleaners or in kitchens but not as educators."

Germany's Federal Anti-Discrimination Agency said the ECJ ruling ensured that "the hurdles for banning religious symbols in the workplace remain very high."

"Blanket bans on individual symbols, such as the headscarf, are still prohibited for companies," Bernd Franke, the government agency's director, said in a written statement.

Neutrality necessary

But the European Network Against Racism said the ruling once again failed to take account of "the disproportionate impact that companies’ policies prohibiting religious signs have on Muslim women as a result of racial and sexist prejudices against them."

Thursday's decision did however mean that companies needed "to provide solid evidence that neutrality is necessary for their businesses," the Brussels-based group's senior advocacy officer, Julie Pascoet, said by e-mail.

In 2017, the ECJ made headlines with a similar ruling, finding that a ban on political, religious or philosophical signs did not constitute direct discrimination.

That case also involved a Muslim woman who objected to her employer's refusal to let her wear a religious headscarf, and challenged it in Belgian courts.

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