On 14 March 2017, the Court of Justice of the European Union ("CJEU") rendered two preliminary rulings concerning the interpretation of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation ("Directive") by which it clarifies the power of employers to ban religious symbols in the workplace.
In relation to Case C-157/15 , the CJEU found that the prohibition on wearing an Islamic headscarf, which arises from an internal rule of a private undertaking imposing a blanket ban on the visible wearing of any political, philosophical or religious sign in the workplace, does not constitute a direct discrimination prohibited by the Directive, i.e. where one person is treated less favourably than another person in a comparable situation, on the grounds, inter alia, of religion. The internal rules at issue cover any manifestation of political, philosophical and religious beliefs without distinction and must therefore be regarded as treating all employees of the undertaking in the same way.
The CJEU stressed, however, that it is not inconceivable that the internal rules at issue are an indirect discrimination, i.e. where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief at a particular disadvantage compared with other persons. Such rules are not, however, considered to be discriminatory if they are objectively justified by a legitimate aim that is pursued by appropriate and necessary means.
According to the CJEU, the employer's desire to display an image of neutrality towards customers is, in principle, legitimate, notably when the rule only applies to employees who are required to come into contact with customers.
The prohibition on wearing visible signs of political, philosophical or religious beliefs is appropriate, provided that the neutrality policy is genuinely pursued in a consistent and systematic manner. Furthermore, the prohibition must qualify as being strictly necessary if the prohibition covers only employees who interact with customers. The CJEU notes that the national court must assess whether it would have been possible for the employer to offer the employee a post not involving any visual contact with customers.
In Case C-188/15 , the CJEU took a similar approach by stating that a rule prohibiting the wearing of any visible sign of political, philosophical or religious belief may constitute an indirect discrimination. The CJUE referred explicitly to the guidance given in Case C-157/15 for the assessment of the legitimacy, appropriateness and necessity of such a rule.
In the absence of an internal rule, the ban on wearing Islamic headscarves is a direct discrimination which could, however, be justified by a 'genuine and determining occupational requirement provided that the objective is legitimate and the requirement is proportionate'. The CJEU stressed that a 'genuine and determining occupational requirement' is objectively dictated by the nature of the occupational activities concerned or of the context in which they are carried out and cannot cover subjective considerations, such as the willingness of the employer to comply with a request from a customer.
In conclusion, the CJEU recognises the legitimacy of general bans on religious symbols if they are part of a neutrality policy that is genuinely pursued in a consistent and systematic matter and applies to visible symbols of all kinds of political, philosophical or religious belief. Such bans may not, however, target specific faiths. Hence the importance for undertakings to establish a general and undifferentiated policy if they want to control the appearance of their employees.
It will be up to the national courts to analyse on a case-by-case basis, whether a direct or an indirect discrimination will be given in the context of the prohibition of wearing visible signs of political, philosophical or religious beliefs.