The court adviser found that small-scale religious displays can be allowed at work, but it’s up to national courts to determine what falls in that category.
LUXEMBOURG (CN) — In a consolidated case involving a drug store clerk and a day care center employee, a magistrate for the European Union’s high court held that employers can ban Islamic headscarves on neutrality grounds.
In a nonbinding legal opinion for the European Court of Justice, Advocate General Athanasios Rantos wrote Thursday that the drugstore chain Müller and day care provider WABE can ban its employees from wearing visible displays of their religious beliefs. The opinion was not immediately available in English.
The two cases were referred to the Luxembourg-based court from two German labor courts, the Hamburg Labor Court and the Federal Labor Court.
“In my view, there cannot be direct discrimination within the [EU’s Employment Equality Directive] where the internal rule of a private undertaking imposing the bearing of visible signs of political, ideological or prohibits religious affiliation at work, equally applies to all religions and beliefs,” Rantos wrote.
While opinions from advocates general are not final, the Court of Justice follows their reasoning in about 80% of cases. In a 2017 ruling in a case involving a Belgian security company, the court held that bans on headscarves do not constitute discrimination.
In 2014, a cashier at one of Müller’s 500-some drugstores in Germany returned from her maternity leave wearing an Islamic headscarf. Identified as M.J. in court documents, she was told to remove the headscarf as company policy forbids employees from wearing head coverings.
She refused and ultimately was transferred to another role that did not require her to remove it. Two years later, the company adopted a requirement that employees must not wear religious, political or philosophical indications while at work.
M.J. was again told to remove her headscarf, and after refusing was sent home. She was told that she should return to work “without any prominent, large-scale religious, political and other philosophical signs.”
The other plaintiff, identified as I.X., began wearing her headscarf before her 2016–2018 maternity leave from WABE, which operates more than 20 child care facilities across Germany.
While she was on maternity leave, the company implemented a neutrality policy which, among other things, forbade employees from wearing “any signs of their political, ideological or religious beliefs that are visible to parents, children and third parties in the workplace.” I.X. was sent home from work on several occasions for wearing the headscarf before being suspended.
Both companies argued they would suffer economic harm by allowing their employees to wear headscarves.
Rantos found that the rules are allowed under EU law.
“[The regulation] must be interpreted as meaning that a difference in treatment based indirectly on religion or belief within the meaning of this provision may be justified by the employer’s desire to pursue a policy of political, ideological and religious neutrality at work, in order to take into account the wishes of clientele,” the opinion states.
However, Rantos said small-scale displays of religious belief or identity could be acceptable under the companies’ neutrality policies.
“I am of the opinion that the fact that an employer pursues a policy of political, ideological or religious neutrality in relations with its clients is not inconsistent with the fact that its employees – visible or invisible – at work bear signs of political, ideological or religious beliefs that are small – that is to say, discreet – and do not stand out at first sight,” he wrote.
While the magistrate concluded that it should be up to the national courts to decide what constitutes a small-scale display, he said that in his view a headscarf would not qualify.
A ruling from the Court of Justice is expected later this year.