Ban on Islamic head scarf: direct discrimination

The Advocate General of the European Court of Justice has recently considered a case in France, where there was a blanket prohibition on Islamic head scarves in a company. This was found to be direct discrimination, and further, because it was a blanket ban on the Hijab, it could not be justified in this case.

Background

The Respondent in this case, Micropole SA, had received a complaint because the Claimant (Ms Bougnaoui) had served a customer whilst wearing the Hijab. The customer had insisted that the Hijab be removed in future. Micropole passed this request on to Ms Bougnaoui, who refused. She was subsequently dismissed.

Micropole tried to defend the claim on 3 grounds:

It was not direct discrimination. The Advocate General disagreed, finding that Ms Bougnaoui had been dismissed on the ground of the direct manifestation her religion.
Not wearing a Hijab was a genuine occupational requirement. The Court’s reasoning was that race discrimination can only be excused on these grounds in very limited circumstances, for instance where there are health and safety issues. In this case there was a blanket ban, hover.
Any indirect discrimination was justified: the Advocate General could not see how it could be justified in this case. The wearing of the Hijab had not affected performance at all, and the only impact appeared to be on the company’s commercial interest which is not a legitimate justification.

Implications

This case appears to be at odds with cases we have previously reported. The apparent contradiction means that these cases need to be looked at very carefully before disciplinary decisions are made.

Perhaps the most alarming feature of the case for employers is the finding of direct discrimination. This would appear to considerably widen the circumstances in which there is direct discrimination, leaving employers with no legal defence.

The Advocate General’s suggestions as to what might not be direct discrimination are therefore very relevant. The Advocate General recommended that, in order to avoid direct discrimination, prohibitions need to be completely neutral, not targeting religious items but also other, secular manifestations, such as football strips and old school ties.

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