Are religious dress bans in the workplace discriminatory?

Insight

Are religious dress bans in the workplace discriminatory?

The European Court of Justice (“ECJ”) has recently delivered a ruling on whether a dress code prohibiting workers from wearing any visible sign of political, philosophical or religious belief in the workplace was discriminatory on religion or belief grounds. The ECJ held that such a policy does not constitute direct religion or belief discrimination, provided that the rule is applied in a general and undifferentiated way. The ECJ also held that the indirectly discriminatory effect of such a rule could be justified by an employer’s genuine business need to pursue a policy of political, physical and religious neutrality with regards to its customers or users.

The joint cases considered by the ECJ were IX v WABE eV; MH Müller Handels GmbH v MJ. The first case involved an employee, IX, who was employed in Germany by WABE as a special-needs carer in a child centre. WABE applied a policy of political, philosophical, and religious neutrality which meant its employees were not permitted to wear any sign of their political, philosophical or religious beliefs that were visible to parents, children and third parties in the workplace. IX wore an Islamic headscarf to work on a number of occasions and was given warnings and suspended.

The second case involved, an employee MJ who was employed as a sales assistant and cashier in a store operated in Germany. She refused to comply with her employer’s request to remove her Islamic head scarf and was sent home. Her employer instructed her to attend her workplace without ‘conspicuous’ and/or ‘large size’ signs of any political, philosophical or religious beliefs. Both employees brought actions before the German courts which referred questions to the ECJ, asking the ECJ to determine whether the treatment in both cases constituted direct religion or belief discrimination, and whether the indirectly discriminatory effect of such a policy could be objectively justified.

Interestingly, when considering the question of whether the indirect discriminatory impact of such a role could be justified, the ECJ concluded that a desire by an employer to display a political, philosophical or religious neutrality was not enough in itself to prove objective justification. Justification can only be established if the employer can demonstrate that it has a genuine need for the policy. In establishing this need account can be taken of the rights and wishes of customers or users such as a parent’s right to ensure the education and teaching of their children is in accordance with their religious, philosophical and teaching beliefs, or their wish to have their children supervised by persons who do not manifest their religion or belief when they are in contact with the children.

Furthermore, the ECJ noted that the rules must be limited to what is strictly necessary having regard to the actual scale and severity of the adverse consequences that the employer is seeking to avoid.

It also noted that dress policies that were limited to prohibiting only ‘conspicuous’ or ‘large-size’ manifestations of religion or belief such as a headscarf were likely to result in direct discrimination based on religion or belief and were thus unlawful.

This is a reminder to all employers to ensure that the policies are drafted carefully and are applied consistently throughout the organisation.

Are religious dress bans in the workplace discriminatory?