New headscarf ruling from the European Court of Justice - Refinement of conditions for neutral dress codes
On 15 July 2021, the European Court of Justice ruled in two German cases that a neutral dress code in the workplace does not constitute either direct or indirect discrimination based on religion or belief. The Court does set some conditions for such neutral dress codes, including the employer’s obligation to prove that the neutrality policy meets a “genuine need”. This genuine need can consist in both a neutral attitude towards customers and the avoidance of social conflict in the workplace.
Facts
- Case IX v. WABE
The first of the two combined cases concerned an employee who was employed as an orthopedagogic caregiver in a large group of day-care centres. In order to ensure an individual and free development of children with regard to religion, philosophy of life and politics, a neutrality policy applied in the day-care centres. This neutrality policy, on the other hand, did not apply to employees in the head office of the day-care centres, as these employees did not have contact with the parents or the children.
Upon returning from parental leave, the orthopedagogic caregiver suddenly wore an Islamic headscarf that she refused to take off. The day-care centre decided to temporarily suspend the employee and to give her a warning. Subsequently, the employee brought the case before the labour court and requested that the day-care centre be ordered to remove the warning from her personnel file.
- Case MH v. MJ
The second case involved an employee who held the position of sales consultant and cashier in a department store. Since the employee refused to remove her Islamic headscarf, she was initially transferred to a position where she could continue to wear her headscarf. After some time, the department store decided to introduce a neutrality policy in order to prevent conflicts between employees. In the past, there had been several conflicts between the personnel due to differences in religion and culture.
On the basis of this new neutrality policy, the employee was sent home, after which she received a warning to return to work without any large, prominent signs of political, philosophical or religious beliefs. The employee contested the validity of the warning and claimed damages.
Confirmation of previous case law
- In the judgment, the Court refers to previous case law in which the Court already ruled that a neutrality policy does not constitute direct discrimination if that policy applies without distinction to all expressions of political, philosophical or religious beliefs and treats all employees of the company in the same way by obliging them to dress neutrally in a general and indiscriminate manner. The Court ruled that there was no direct discrimination in this case, as the day-care centre had also required a Christian employee to take off a religious cross;
- Furthermore, the Court repeats that the employer’s desire to demonstrate neutrality towards (both public and private) customers can be considered a legitimate objective if, in pursuing that objective, the employer only involves those employees who have contact with customers.
New refinements
- In the judgment, the Court specifies that the mere desire of the employer to pursue a neutrality policy is not sufficient to objectively justify an indirect distinction based on religion or belief. The justification can only be objective if three conditions are met:
- There must be a “genuine need” of the employer, which must be proven by the employer.
The “genuine need” can be proven by taking into account the rights and legitimate expectations of the customers or users (but obviously not the discriminatory demands of customers). For example, parents may have a legitimate expectation that caregivers in day-care centres should dress neutrally to ensure their children’s free development with respect to religion, philosophy of life and politics.
Not only a neutral attitude toward clients, but also the avoidance of social conflict may constitute a genuine employer need. This is a welcome clarification for many companies, since in previous judgments the Court had only ruled that external neutrality towards customers can be considered a legitimate objective (without ruling on internal neutrality).
In addition, the employer must prove that, without the introduction of a neutrality policy, his freedom to do business would be affected as he would suffer detrimental consequences given the nature or context of its activities.
- The dress code must be “appropriate” to ensure the proper application of the neutrality policy. In other words, the policy must be effectively pursued in a coherent and systematic manner;
- The dress code must not go beyond what is strictly necessary relative to the detrimental consequences that the employer tries to avoid through the dress code.
- Even if a ban on large, prominent signs (as was the case in the department store concerned) is applied coherently and systematically, this is unjustified according to the Court. Indeed, any sign – even a small one – undermines the coherence of the neutrality policy. It is therefore not possible to limit the ban to the wearing of “large, prominent signs” of political, philosophical or religious beliefs.
Open questions
Finally, the German court had asked the Court whether a neutral dress code could constitute indirect discrimination on the basis of sex, since in practice neutral dress codes affect almost exclusively female employees. The Court found that the discrimination ground of “sex” was outside the scope of the European Framework Directive on Discrimination to which the question was limited, and therefore did not answer this question.
Action point
You can introduce a neutral dress code in your company if this policy meets a genuine need that can be proven.
Furthermore, please make sure that this dress code applies without distinction to all political, philosophical or religious expressions and is therefore certainly not limited to a ban on headscarves or to “large, prominent” signs.
We can of course assist you if you wish to introduce a neutrality policy.