France: Dispute about wearing Islamic headscarf referred to EU Court of Justice

A dispute over a French IT worker being dismissed for refusing to take off her hijab has been referred to the EU Court of Justice. The woman had been asked to remove the headscarf after one of her employer’s customers said it made staff uncomfortable. The CJEU must decide whether a customer’s wishes constitute ‘a genuine and determining occupational requirement’.

Background

What an employee chooses to wear in France is a matter of individual freedom (in French), recognised by the Court of Cassation and protected by the French Labour Code. French law also recognises religious freedom as a fundamental liberty. Consequently, any restrictions on the freedom to display one’s religious beliefs have to be justified by the nature of the tasks a person does (in French), and in proportion with the intended purpose (in French). For example, the French equality and anti-discrimination authority (Halde), now part of The Defender of Rights organisation, stated in 2009 that, for health and safety reasons, employees could be required to wear clothing that is incompatible with religious symbols (in French, 122 KB PDF). Since 2010, for reasons of public safety, the law prohibits people wearing clothing intended to hide the face (in French) in businesses that are open to the public such as cinemas, restaurants, stations and banks.

Current case law

The Court of Cassation has already made two judgments on cases concerning women wearing the hijab, the Islamic head scarf. In the ‘Baby-Loup crèche’ case, the court upheld the dismissal of the deputy manager on grounds of serious professional misconduct. She had refused to remove her hijab despite the restrictions imposed by internal rules. The court considered, in 2014, that the crèche’s internal rules were sufficiently specific (in French), justified by the nature of the tasks carried out by staff, who were in direct contact with the children and their parents, and proportionate to the intended purpose. The court also said that, where organisations (even private ones) are managing a public service, the principles of neutrality and secularism apply. In this case, a general ban on displaying one’s religious beliefs is therefore lawful. In 2013, the Court of Cassation also upheld the dismissal of a technician who refused to remove her hijab (in French) when working at a social security agency office where regulations included a general ban on agents wearing any religious symbols.

Latest case 

However, the Court of Cassation has called upon the CJEU in the latest case, that of the IT employee who was dismissed for refusing to remove her hijab (in French) after a client had said it made staff uncomfortable. The CJEU will have to decide whether taking a customer’s wishes into account can constitute ‘a genuine and determining occupational requirement’ within the meaning of the Employment Equality Directive. The CJEU, which has never yet ruled on this issue, will make its decision in 2016. The only decision that could indicate the court’s view is one it made in 2008: the Feryn case involved the manager of a Belgian company who had said he did not want to hire ‘immigrants’ because his customers wished only to deal with ‘true Belgians’. While the CJEU concluded that this was discriminatory, it did not make a ruling on the issue of taking a client’s wishes into consideration.

Attitude of the social partners

The French think tank Astrees has underlined the lack of intervention by the social partners in the way companies manage religious issues (in French, 1 MB PDF). It says any initiatives by employer organisations on this (which broadly relate to respecting diversity) are generally approached with extreme caution. Trade unions have set up some working groups (whose findings have not yet been published), but Astrees points out that unions find it difficult to define a course of action on these issues. The think tank findings conclude with five guidelines aimed at helping the social partners deal with religious issues in companies. However, the union CFDT recently published a handbook (Le fait religieux dans l’entreprise) to help its delegates to deal with this issue at company level. The handbook contains a summary of the legislation and case law and includes some short case studies and practical recommendations. 

Comments

With between two and four million Muslims in France – there are no exact statistics since French law forbids the conducting of population censuses by religion – the question of whether it is possible to wear an Islamic headscarf at work is one that arises frequently. However, the ruling by the CJEU on this case will affect every private employer in the European Union. Moreover, whatever the ruling, this case will doubtless challenge national case law. For example, the German Constitutional Court has permitted teachers in German state schools to wear the hijab, something which the French Court of Cassation would not have allowed. Ultimately, the decision will, of course, be a sensitive one, considering the likelihood of hardened European public opinion in the wake of the Paris attacks on issues such as the displaying of religious symbols.

 

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