Court finds against department store in Muslim headscarf case

In August 2000, the Danish High Court delivered its long-awaited judgment in the high-profile "headscarf case", in which a girl of Iraqi descent sued the Magasin department store for refusing to take her on as a trainee because she insisted on wearing her scarf. The High Court ruled that this was a violation of the Act prohibiting discrimination on the labour market, as it constituted indirect discrimination. However, two major retails, FDB and Dansk Supermarked, will maintain their ban on special headgear among their employees.

In November 1998, a 14-year-old girl of Iraqi descent, Islam Amin Baktyar, was to spend one week of work experience in the department store Magasin in Odense in order to obtain insight into training opportunities and working conditions. Work experience is an element of vocational guidance programmes in Danish schools. For religious reasons, Ms Baktyar wore a Muslim headscarf. When she refused to take it off in order to comply with Magasin's dress code, she was turned away on the ground of failure to observe the store's general regulations on employees' clothing. Shortly afterwards, she appeared on television in a programme which described what it was like to be a Muslim woman in Denmark. This triggered a controversy. With the assistance of the Documentation and Counselling Centre for Racial Discrimination (Dokumentations- og Rådgivningscentret for Racediskimination, DCR), Ms Baktyar sued Magasin in the early summer of 1999 for breach of the Act prohibiting discrimination on the labour market. This Act was adopted in 1996 and prohibits discrimination on grounds including religion. This was the first case concerning the application of the Act in the retail trade. The case was brought before the Copenhagen City Court according to normal procedure, but the City Court found that the case involved important principles of law and referred it to the High Court. Following the Court's ruling against Magasin in August 2000 (see below), the company is considering an appeal to the Danish Supreme Court.

The case had further consequences. In the course of the summer of 1999, the media presented similar cases where Muslim women had been refused employment by the largest supermarket chains in Denmark, Danish Consumer Cooperative (Forenede Danske Brugsforeninger, FDB) and Dansk Supermarked, which would not allow their employees to wear headscarves at visible places in their shops (DK9908141N). The Minister of Labour, Ove Hygum, sent a letter to the supermarkets and to the relevant social partner organisations in the sector, Danish Commerce and Services (Dansk Handel & Service, DHS) and the commercial section of the Danish Union of Commercial and Clerical Employees/Trade (HK/Handel), in which he clearly indicated that it was unlawful to refuse employment to women for wearing a Muslim headscarf. The Minister of Labour also set up a committee which was to draw up a circular concerning the proper interpretation of the Act. The reasons why these cases attracted so much attention was the general public debate about attitudes to immigrants and their descendants and in particular their position on the Danish labour market. The social partners chose to await the outcome of the pending case before taking a final position.

The judgment

The long-expected judgment of the Eastern Division of the Danish High Court (in Copenhagen) in the case of Islam Amin Baktyar (who had since turned 17) was delivered on 10 August 2000. The judgment was in favour of the plaintiff and the Court found that Magasin was guilty of indirect discrimination, as Ms Baktyar had clearly been turned away for wearing a headscarf. The conclusion of the High Court was: "It is important in this connection that the enforcement of the dress code as in this case will typically hit a specific group with the same religious background as the plaintiff. The High Court finds that the department store - which has a rather liberal dress code - has failed to prove special circumstances in the department store which would have justified that the plaintiff should be turned away."

The reaction of the social partners

After a "reflection period" of one day, FDB and Dansk Supermarked announced that they were not going to change their practice. This judgment was specific to the Magasin case, they argued. Unlike the dress code of Magasin, their own dress codes were so clearly defined that they believed that their continued ban against headscarves was reasonably justified. This argument was supported by the DHS employers' organisation. DHS refers to a supplementary explanatory note to the Act of 1996 which states that the Act shall apply to clothing only in the absence of any precise rules formulated in a dress code. In a comment on this position, HK/Handel states that the Act actually establishes some fundamental human rights, including a prohibition against discrimination on the labour market on the grounds of religion. On this point, HK/Handel welcomes the judgment of the High Court, believing that in the future it will be much easier for its members to negotiate dress codes with management.

Commentary

Leaving aside the more emotional aspects of the debate, this case concerns only a single issue. Does the employer's prerogative override human rights? Is the right to control and manage - which has a tradition going back more than 100 years in Denmark (to the 1899 "September compromise" - DK9908140F) - in itself a legitimate ground, or is this right restricted in cases involving general personal rights. The judgment of the High Court does not consider this question. The judgment just discards loosely formulated dress codes as a legitimate ground for turning away the plaintiff. Implicitly, this means that legitimate grounds or special circumstances justifying such action could be considerations of hygiene, safety or health. For example: can a turban be worn under a safety helmet? This means that this judgment will not be the last one to be seen in cases of this type. If the enterprises continue to invoke their management prerogatives, this will lead to new cases and at some point the courts will have take a position on the more general matters of principle involved. If Magasin appeals against the judgment of the High Court, this consideration could take place in its case before the Supreme Court. However, an opposite development could also be envisaged: that the supermarkets manufacture a headscarf which is adapted to the uniforms used in their shops, as has already happened in a number of shops and organisations, such as IKEA, MacDonalds, ISS, the Danish State Railways (DSB) and Post Denmark. (Carsten Jørgensen, FAOS)