Is it Discrimination to Ban a Muslim Employee from Wearing a Headscarf at Work?
The Advocate General has been asked to consider this point in a Belgian case referred to the European Court of Justice (ECJ). The Advocate General’s opinion is not binding but the ECJ often follow the opinion when giving their final ruling.
The employer in question had a policy whereby employees were not permitted to wear any visible religious, political or philosophical symbols in the workplace. As a result a Muslim employee was prevented from wearing an Islamic headscarf at work.
The Advocate General held that the policy affected all employees equally and was not based on stereotypes or prejudice against one or more particular religions or religious beliefs in general and that therefore it did not amount to direct discrimination.
Even if it did amount to direct discrimination, the Advocate General’s opinion was that the headscarf ban could be regarded as a genuine occupational requirement due to the employer’s policy of requiring religious and ideological neutrality because of their broad range of customers.
It was found that the ban did have the potential to amount to indirect discrimination as it was capable of putting individuals of particular religions and beliefs at a disadvantage when compared to other employees. However the Advocate General found that the occupational requirement exemption mentioned above could also apply here.
It was held that unlike other protected characteristics such as sex, race and ethnic origin, religion and belief was an area over which an employer could exert an influence, which could include requiring employees to moderate the exercise of religion in the workplace. It is however important to note that the degree of moderation will depend on the particular facts of each case.
The ECJ’s final decision is expected within three to six months and will be the first time they have ruled on Muslim headscarves and the outcome of the case is therefore awaited with much interest.