Headscarf ban in workplace not discriminatory, top EU court says

PARIS -- Private businesses in Europe can forbid Muslim women in their employ from wearing headscarves if the ban is part of a policy of neutrality within the company and not a sign of prejudice against a particular religion, the European Union Court of Justice said Tuesday.

Such a ban doesn’t constitute what the court calls “direct discrimination.”

The conclusion by the highest court in the 28-nation European Union was in response to two cases brought by a Belgian and a French woman, both fired for refusing to remove their headscarves. It clarifies a long-standing question about whether bans by some countries on religious symbols, in classrooms, for example, can be extended to the workplace. 

The court’s response fed right into the French presidential campaign, bolstering the platforms of far-right leader Marine Le Pen, a leading contender in the spring election who wants to do away with all “ostentatious” religious symbols in the name of secularism, and conservative Francois Fillon, who hailed the court’s decisions. France already bans headscarves and other religious symbols in classrooms as well as face-covering veils in streets.

However, critics quickly voiced fears that the decision risks becoming a setback to all working Muslim women.

“Today’s disappointing rulings ... give greater leeway to employers to discriminate against women -- and men -- on the grounds of religious belief,” said a statement by Amnesty International. “At a time when identity and appearance has become a political battleground, people need more protection against prejudice, not less.”

Georgina Siklossy of the European Network Against Racism in Brussels expressed concern it could have dastardly effects on Muslim women -- like making them choose between working and wearing religious garments -- and other minority populations in Europe, like Sikhs with turbans or Jews with kippahs.

The Open Society Justice Initiative, which submitted a brief supporting the women, expressed disappointment.

The group’s policy officer, Maryam Hmadoum, contended that the decision “weakens the guarantee of equality that is at the heart of the EU’s antidiscrimination directive,” which the Court of Justice cited in weighing the cases.

“Certainly, many employees who are asking themselves questions about religious signs in their companies will look at these decisions and probably put in place internal regulations,” said lawyer Claire Waquet, who represents the French woman in question. “Some will certainly do this.” 

The EU Court of Justice made separate decisions on the cases, which were referred to them by the courts of Cassation in Belgium and France, but linked the cases.

In the Belgian case, Samira Achbita, a receptionist at a security firm, was fired in June 2006 for wearing an Islamic headscarf, banned in a new set of internal rules by her company that prohibited visible signs of political, religious or philosophical beliefs. Belgium’s Court of Cassation sought guidance from the Luxembourg-based European court which rules on cases involving EU law, which applies to all EU members.

The French case differs and offers Asma Bougnaoui a reason for optimism because her dismissal as a design engineer was based, not on internal rules, but on the complaint of a customer unhappy with her Islamic headscarf. The court’s response made clear that a company policy to maintain neutrality in the religious sphere was critical to ensuring non-discrimination - not a complaint by a client.

The court said that an employer’s readiness to take into account the wishes of a customer, not internal policy, doesn’t qualify for the measure set out by the European Union: a “genuine and determining occupational requirement.”

“The question asked was, ‘Is it enough for a client to say it bothers me that you are sending me a veiled employee ... The (court) answered, ‘No, this is not enough,’” said Bougnaoui’s lawyer, Waquet. The employer’s accommodation to a client “is not an essential and decisive factor.”

“The employer,” she said, “has a role (and) needs to filter discriminatory requests.”

Each of the two cases had gone to their respective Courts of Cassation, which sought guidance from the European court. The home courts must still rule on each case.