Religious Discrimination and Headscarves – Take Two

by | Jul 29, 2021

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About Lucy Vickers

Lucy Vickers is Professor of Law at Oxford Brookes University, where she is the Director of Research in the School of Law and Social Sciences. Her main research area is equality law and the protection of human rights within the workplace.

In IX v WABE eV (C‑804/18) and MH Müller Handels GmbH v MJ (C‑341/19), the CJEU returned to the vexed question of religious discrimination and headscarves, last considered in the cases of Achbita and Bougnaoui.

IX, a nursery worker challenged disciplinary action taken against her for wearing a headscarf to work. Her employer imposed a rule prohibiting the wearing of any visible political, philosophical or religious sign when in contact with the children or parents. MJ’s employer applied a narrower rule prohibiting only the wearing of conspicuous, large-sized political, philosophical or religious signs at work. MJ wore a headscarf to work and was sent home. IX and MJ challenged these rules.

Whilst the decision of the CJEU largely confirms its earlier similar cases, there are a few areas in which there is a welcome difference in emphasis second time around. Broadly, the CJEU addressed four issues, outlined below.

Direct and indirect discrimination: The CJEU confirmed that discrimination arising from a generally applicable neutrality based dress code is not direct discrimination. This position is uncontroversial: the application of a neutral rule which has differential impact on different groups is, after, all the architype of indirect discrimination.

The CJEU introduces some uncertainty, though, in its suggestion [73] that a rule which limits only conspicuous religious symbols may amount to direct discrimination. This suggestion adds to the debate over the exact parameters of direct discrimination particularly in ‘proxy’ cases where there is a total overlap between those affected by a rule and a protected characteristic. This element of the judgment is not particularly helpful as conspicuous religious clothing is not limited to the headscarf, turbans being a common additional example. The CJEU may be attempting to clarify that where neutrality rules are imposed simply to justify a refusal to employ one religious group, such as Muslim women, this will clearly be unlawful and not justifiable.

Justification of Indirect Discrimination: The CJEU confirms [66] that discriminatory customer choice cannot be a legitimate aim for any restrictions on religious dress. However, the Court also repeated its somewhat problematic approach from Achbita, accepting that the desire to project an image of neutrality towards customers is a legitimate aim. These positions are inconsistent: after all, demands for a neutral service are effectively customer choices. The court also confirmed that employers are more likely to be able to justify the imposition of neutrality provisions if they are restricted to non-client facing roles, continuing the risk identified following Achbita that minority religious staff will be confined to backroom jobs, causing particular difficulties in service based sectors.

Despite these echoes of its earlier approach, the CJEU takes a firmer line as regards reliance on customer demands for neutrality. It makes clear [67] that evidence is needed before adverse economic consequences can be relied on as justification for a neutrality rule; and confirms that regard should be had to the fact that freedom of religion will be restricted [69]. Second time around, the court is much clearer that customer preference is not a readily-available justification for indirect discrimination.

EU Law and National Rules:  in a welcome clarification, the CJEU confirmed that Directive 2000/78 and Article 16 of the Charter do not preclude national rules that grant additional protection to freedom of religion or belief. In contrast to Achbita where significant prominence was given to the rights of businesses under Article 16, WABE suggests a rebalancing as between the competing rights at stake and a clearer recognition that national rules may give additional protection to religious freedom.

Neutrality and Symbols: Next, the CJEU held that it will be difficult to justify limitations in the name of neutrality only to conspicuous symbols: ‘neutrality’ can only be achieved if applied to all signs. This will be of significance in those member states, such as France, where distinctions based on conspicuousness result in differential treatment as between the hijab and Christian jewellery. Of course other aims might be found that might justify different treatment of different types of religious symbol, such as health and safety concerns.

A further notable aspect of the decision in WABE relates to the explicit acceptance of a margin of discretion allowed to national courts in assessing the proportionality of any restriction on religious symbols, in order to achieve the necessary reconciliation of the different rights and interests at issue. Whilst it is understandable that the Court may want to allow for different national approaches to the vexed and often politicised question of religious symbols in the workplace, nonetheless this approach differs from that taken in respect of other equality grounds, where the CJEU has taken a stronger line in standard setting.

Finally, the CJEU refused to consider whether ban on headscarves could amount to sex discrimination, on the basis that this case related to Directive 2000/78 which does not cover sex discrimination. The Court’s restrictive approach on this issue highlights the structural difficulties in addressing questions of intersectionality which arise in relation to restrictions on religious dress, most commonly impacting Muslim women.

In these decisions, part of a long line of cases before the European courts, the CJEU provides improved protection for religious employees. Whilst leaving space to national discretion, and still allowing scope for ‘customer preference’, the scope for such claims is clearly restricted by a strong emphasis that any restrictions on religious freedom must be strictly necessary, and backed by evidence. Second time around, the Court has given a stronger steer to national courts, suggesting tentative steps towards a more inclusive approach by the CJEU towards minority religions.

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