Publication
Title
You can leave your hat on, but not your headscarf : no direct discrimination on the basis of religion
Author
Abstract
In its judgments in the Achbita and Bougnaoui cases, the Court of Justice of the European Union applies Directive 2000/78 establishing a general framework for equal treatment in employment and occupation to cases in which employees were dismissed because they refused to remove their headscarf when entering into contacts with customers. This article offers a critical assessment of the Courts reasoning and conclusions. In Achbita, the Court decided that a prohibition on wearing an Islamic headscarf, which arises from an internal rule of a private undertaking prohibiting the visible wearing of any political, philosophical or religious sign in the workplace, does not constitute direct discrimination based on religion or belief within the meaning of the Directive. There are, however, various counter-arguments that can be raised against this conclusion, which the Court does not address. The Court acknowledges in Achbita that an employers wish to pursue a policy of neutrality in its relations with customers is a legitimate aim that can justify an indirect distinction based on religion. In Bougnaoui, however, it warns that the willingness of an employer to take account of the wishes of a customer no longer to have the services of that employer provided by a worker wearing an Islamic headscarf cannot be considered a genuine and determining occupational requirement within the meaning of article 4(1) of the Directive. It is not entirely clear how both of these conclusions on the legitimate aim test relate to each other and can be reconciled. Finally, the Courts guidance to the referring judge on the proportionality test in Achbita provokes a series of questions. Its approach to the necessity test leaves remarkably little room for the national judge to make his own assessment based on the particularities of the case. The absence of any guidance when it comes to proportionality in the strict sense is equally striking.
Language
English
Source (journal)
The international journal of comparative labour law and industrial relations. - The Hague
Publication
The Hague : 2017
ISSN
0952-617X
Volume/pages
33 :4 (2017) , p. 553-572
ISI
000426244100005
Full text (publisher's version - intranet only)
UAntwerpen
Faculty/Department
Research group
Publication type
Subject
Law 
Affiliation
Publications with a UAntwerp address
External links
VABB-SHW
Web of Science
Record
Identification
Creation 29.03.2018
Last edited 23.09.2021
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