EU Adviser Backs Woman Sacked Over Her Hijab

(CN) — A French company's order requiring a Muslim woman to remove her headscarf before interacting with clients constituted indirect discrimination — and firing her after she refused was directly discriminatory, an EU high court adviser said Wednesday.

Asma Bougnaoui worked as a design engineer for French IT consultant Micropole between 2008 and 2009. While at work, Bougnaoui wore an Islamic headscarf that covered her head but left her face exposed.

One of Micropole's clients complained that Bougnaoui's headscarf "embarrassed" its employees and requested that the next time Bougnaoui met with them "there should be no veil." Micropole asked if Bougnaoui would comply with the client's request and when she said no, she was fired.

Bougnaoui sued, and the French Court of Cassation asked the European Court of Justice to weigh in on whether requiring an employee to remove her headscarf while meeting with clients was a "genuine and determining occupational requirement" falling outside EU law prohibiting religious discrimination.

In an advisory opinion for the EU high court, Advocate General Eleanor Sharpston noted that the freedom to express one's religion outwardly is an intrinsic part of the constitutional freedom of religion. And while private companies have a small amount of leeway to restrict employees' religious expressions when there is a "genuine and determining occupational requirement" to do so, the discomfort of Micropole's client does not rise to that level, Sharpston said.

"There is nothing to suggest that Ms. Bougnaoui was unable to perform her duties as a design engineer because she wore an Islamic headscarf," Sharpston wrote her 20-page advisory opinion. "Indeed, Micropole's letter terminating her employment expressly referred to her professional competence.

"It seems impossible to conclude otherwise than that Ms. Bougnaoui was treated less favorable on the ground of her religion than another would have been treated in a comparable situation," Sharpston continued. "Ms. Bougnaoui's dismissal therefore amounted to direct discrimination against her on the basis of her religion or belief."

Sharpston also rejected the other possible derogations allowed under EU law, finding that France has no law prohibiting private-sector employees from wearing religious attire, that Micropole is not a religious organization and that the company's possible loss of the client doesn't justify discrimination against Bougnaoui.

However, Sharpston acknowledged that a company policy imposing an entirely neutral dress code applicable to all employees may result in justifiable indirect discrimination — provided the dress code pursues a legitimate aim and is proportionate, a question for the French court to decide, she said.

Sharpston's opinion is not binding on the European Court of Justice, which has begun its own deliberations in the case.

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