[Co-author: Paul-Henri Mousseron, Conseil Scientifique]
On March 14, 2017, the European Court of Justice issued decisions in two cases addressing the delicate legal and political issue of wearing signs of religious belief at work.
Most media outlets and commentators who assessed the decisions focused on the court’s acknowledgment that employers may, under certain circumstances, prohibit employees from wearing Islamic headscarves. Such bans in companies’ internal regulations were deemed not to constitute direct discrimination based on religion or belief.
From a legal point of view, however, it must be noted that the recent decisions were very balanced. Based on the decisions, employers may want to do the following:
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implement internal dress neutrality rules (in accordance with local legal requirements applicable to workplace regulations);
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provide justification that the policy decision is actuated by a legitimate aim, which should extend neutrality to all signs of political, philosophical, or religious beliefs; and
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ensure that the means of achieving that aim are appropriate, necessary (especially for workers who interact with customers), and implemented in a consistent and systematic manner.
If no such justified internal workplace regulations exist (as was the case in one of the two matters before the Court of Justice), the court stated that the willingness of an employer to take into account the wishes of a customer to no longer have services provided by a worker wearing an Islamic headscarf cannot be considered a genuine and determining occupational requirement within the meaning of the directive.
The European offices of Ogletree Deakins will continue to monitor and report on developments affecting the workplace rules of employers doing business in Europe.
