Islamic headscarves and the CJEU
| Author | Erica Howard |
| Published date | 01 June 2017 |
| DOI | 10.1177/1023263X17722326 |
| Date | 01 June 2017 |
| Subject Matter | Articles |
Article
Islamic headscarves and the
CJEU: Achbita and Bougnaoui
Erica Howard*
Abstract
This article contains an analysis of the recent CJEU cases on the wearing of Islamic headscarves at
work. It is argued that the CJEU had four main options in answering the questions referred by the
national courts in these cases: it could have found that the employer’s rules in these cases con-
stituted direct discrimination; it could have held that there was no direct discrimination but that
there might be indirect discrimination, but that a very strict justification test should be applied; it
could have concluded that there might be indirect discrimination and that a very lenient justifi-
cation test should be applied; or, it could have found that the wish of customers not to have
services provided by an employee wearing a headscarf is a genuine and determining occupational
requirement. The CJEU appears to have chosen the third option, and in doing so, has missed the
opportunity to take a strong lead in providing protection against religion or belief discrimination
and against discrimination of minorities.
Keywords
religious discrimination, Islamic headscarves, direct discrimination, indirect discrimination, genuine
and determining occupational requirements
1. Introduction
On 14 March 2017, the Grand Chamber of the Court of Justice of the European Union (CJEU)
issued its first judgments on discrimination on the grounds of religion or belief under Directive
2000/78/EC.
1
Both of these cases concerned women, who wanted to wear Islamic headscarves at
* Associate Professor of Law, Middlesex University, Hendon, London, UK
Corresponding author:
Erica Howard, Middlesex University, Hendon, London, UK.
Email: e.howard@mdx.ac.uk
1. Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in
employment and occupation, [2000] OJ L 303/16.
Maastricht Journal of European and
Comparative Law
2017, Vol. 24(3) 348–366
ªThe Author(s) 2017
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DOI: 10.1177/1023263X17722326
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work. Both cases were heard together in March 2016. In Samira Achbita and Centrum voor
Gelijkheid van Kansen en voor Racismebestrijding v. G4 S Secure Solutions NV,
2
a Muslim woman
worked for G4 S as a receptionist and was permanently contracted out to a third party. After she
had worked for G4 S for three years, she informed them that she intended to start wearing an
Islamic headscarf during working hours. G4 S had an unwritten rule that workers could not wear
visible signs of their political, philosophical or religious beliefs in the workplace and thus Ms
Achbita was told that she could not wear the headscarf as this was against the employer’s strict
neutrality rule. When she refused to take off her headscarf at work, she was subsequently dis-
missed. Both the Labour Court and the Higher Labour Courts in Antwerp, Belgium, rejected Ms
Achbita’s claim that this dismissal was based on discrimination on the ground of her religion or
belief contrary to Directive 2000/78/EC. The Belgian Court of Cassation asked the CJEU for a
preliminary ruling on the following question: ‘[s]hould Article 2(2)(a) of Directive 2000/78 be
interpreted as meaning that the prohibition on wearing, as a female Muslim, a headscarf at the
workplace does not constitute direct discrimination where the employer’s rule prohibits all
employees from wearing outward signs of political, ph ilosophical and religious beliefs at the
workplace?’
3
In Asma Bougnaoui, Association de De
´fense des Droits de l’Homme (ADDH) v. Micropole
Univers SA,
4
a design engineer, who went out to work at customer’s sites, was told by her employer
to remove her Islamic headscarf when visiting clients, after a complaint by a client’s staff member.
When she refused to follow this instruction, she was subsequently dismissed. Her claim that the
dismissal constituted discrimination on the ground of religion or belief was rejected by the Labour
Tribunal in Paris and, on appeal, the French Court of Cassation referred the following question to
the CJEU for a preliminary ruling:
Must Article 4(1) of Directive 2000/78 be interpreted as meaning that the wish of a customer of an
information technology consulting company no longer to have the information technology services of
that company provided by an employee, a design engineer, wearing an Islamic headscarf, is a genuine
and determining occupational requireme nt, by reason of the nature of the particula r occupational
activities concerned or of the context in which they are carried out?
5
This article contains an analysis of the two judgments, including the two divergent opinions of
Advocates General Kokott (in Achbita)
6
and Sharpston (in Bougnaoui).
7
It is submitted that the
CJEU had four main options in answering the questions referred: it could have found that the
employer’s rules in these cases constituted direct discrimination (answering the question referred
by the Belgian Court of Cassation in the affirmative); it could have held that there was no direct
discrimination but that there might be indirect discrimination, but that a very strict justification test
should be applied; it could have concluded that there might be indirect discrimination, but could
have applied a very loose justification test; or, it could have found that the wish of customers not to
2. Case C-157/15 Samira Achbita and Centrum voor Gelijkheid van Kansen en voor Racismebestrijding v. G4 S Secure
Solutions NV, EU:C:2017:203.
3. Ibid., para 21.
´fense des Droits de l’Homme (ADDH) v. Micropole Univers SA,
EU:C:2017:204.
5. Ibid., para. 19.
Howard 349
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