In Samira Achbita v G4S Secure Solutions NV, a judgment of the European Court of Justice in Luxembourg has recently garnered a great deal of attention for seemingly allowing companies to ban staff from wearing visible religious symbols. In this article, we consider whether Muslim women are more significantly affected by this ruling.
The claimant was a receptionist who, after three years of employment, decided she wanted to start wearing a headscarf at work for religious reasons. She was dismissed in June 2006 for refusing to take off her scarf, which her employer said was a violation of unwritten rules prohibiting visible signs of political, philosophical or religious beliefs and requiring employees to dress neutrally. The matter was ultimately referred to the ECJ, who stated that the garments could be banned, but only as part of a general policy barring all religious and political symbols. “An internal rule of an undertaking which prohibits the visible wearing of any political, philosophical or religious sign does not constitute direct discrimination” the court ruled.
While it has been suggested that the ECJ’s guidance to Belgium’s national courts constitutes an outright ban on headscarves, it is important to note that it does not go that far, in that the Court applied several provisos. In another case that was heard at the same time, Bougnaoiu and ADDH, the Court was very clear that employers will not arbitrarily be able to demand the removal of a headscarf in the absence of a systematic policy.
Even so, Achbita is not an untroubling decision at a time of delicacy for Europe’s Muslim population.
In Advocate General Kokott’s Opinion in Achbita, she commented that all of the information available to the Court indicated that G4S’ policy could just as easily affect a male employee of Jewish faith who comes to work wearing a kippah, or a Sikh who wishes to perform his duties in a Dastar (turban), or male or female employees of a Christian faith who wish to wear a clearly visible crucifix or a T-shirt offering the slogan ‘Jesus is great’ to work. However, there is no indication from either the ECJ’s judgment or AG Kokott’s Opinion that specific evidence in respect of potential gender discrimination was presented and/or considered, and it was not the focus of the question put to the Court.
AG Kokott in her Opinion suggested that the Court might be more open to providing greater protections to more “immutable physical features or personal characteristics – such as gender, age or sexual orientation”.
Arguably, the ban may in fact disproportionately affect women in the workplace, who openly display their faith by their clothes in greater numbers than men or women of other faith. This whole question may need to be considered at a further date by the ECJ, under the “gender” heading.