European Union: European Court Clarifies Legality of Banning Islamic Headscarves in the Workplace

On March 14, 2017, the Court of Justice of the European Union ("ECJ")1 issued a significant ruling clarifying when an employer may prohibit employees from wearing visible signs of their religious beliefs in the workplace.2 The ruling was issued to address two instances – one in Belgium and the other in France – in which female Muslim employees were terminated for refusing to remove their headscarves. In short, the ECJ held:

  • There is no direct discrimination in prohibiting an Islamic headscarf pursuant to the employer's neutral policy banning any political, philosophical or religious signs in the workplace;
  • Such a neutral policy may cause indirect discrimination if employees of a particular religion are placed at a disadvantage;
  • Such indirect discrimination is permissible if it is in pursuit of a legitimate aim, such as in demonstrating the employer's political, philosophical or religious neutrality towards customers;
  • Where a legitimate, neutral policy leads to indirect discrimination, the employer may still have a duty to provide certain accommodations to an employee to alleviate the effects of discrimination, such as offering the employee an alternative position;
  • In the absence of a neutral policy, an employer may not acquiesce to a customer's request to prohibit an Islamic headscarf, as such a request does not reflect a "genuine and determining occupational requirement."

The Belgian Case

The Belgian case before the ECJ arose from the termination of a Muslim receptionist at a security company. When the receptionist was hired, the company had an unwritten rule prohibiting employees from wearing visible signs of their political, philosophical or religious beliefs in the workplace. A few years later, the receptionist informed the company she intended to wear a headscarf, to which the company responded that the headscarf would violate the company's unwritten rule, which was shortly thereafter approved by the works council as a formal workplace regulation. The receptionist insisted on wearing the headscarf and was therefore dismissed. The receptionist challenged her dismissal in the Belgian courts, and the Hof van Cassatie (Court of Cassation) sought the ECJ's opinion whether the dismissal violated the European Union ("EU") directive on equal treatment in employment and occupation.3

The ECJ found that the security company's policy was applied neutrally, without creating any differential treatment based on a particular religion or belief. Therefore, the dismissal was not direct discrimination.

The ECJ ruled, however, that the neutral policy could cause indirect discrimination if it placed employees of a particular religion at a disadvantage. The policy would, therefore, be permissible only if it was justified by a "legitimate aim" and the means to achieve that aim were "appropriate and necessary." A "legitimate aim" includes an employer's desire to project an image of neutrality towards its customers – notably where the workers involved are customer-facing.

The ECJ returned the matter to the Belgian court for further fact-finding. Based on the ECJ ruling, the Belgian court must now determine whether the company had, prior to the receptionist's dismissal, established and implemented the policy in a neutral manner, and whether the prohibition covered only the customer-facing workers.

Additionally, the ECJ also asked the Belgian court to consider whether it would have been an undue burden for the company to offer the receptionist a post that did not face customers. This directive indicates that, where a legitimate, neutral policy leads to indirect discrimination, the employer may still have a duty to provide accommodations to an employee to alleviate the discrimination.

The French Case

The French case before the ECJ arose from the termination of a design engineer at an IT company. When the company first recruited her as an intern at a student fair, it informed her that wearing an Islamic headscarf may pose customer relations issues. Nonetheless, after first wearing a bandana, she started wearing a headscarf. But after a customer complained, the company asked her to cease wearing the headscarf, citing the need for neutrality in customer relations. The engineer objected and was dismissed. She sought relief in the French courts.

The French Cour de cassation (Court of Cassation) referred the matter to the ECJ to determine whether, under the EU directive, it is a "genuine and determining occupational requirement" for an employer to take into account the wishes of a customer to not have to deal with an employee in a headscarf. A "genuine and determining occupational requirement" is a requirement that is objectively dictated by the nature and context of the particular job. This concept parallels the "bona fide occupational qualification" concept in U.S. employment discrimination law.

The ECJ found it unclear whether the engineer's dismissal was pursuant to a violation of the company's neutral application of a legitimate policy prohibiting visible religious symbols in the workplace. The ECJ asked the French court to conduct further fact-finding to determine this question. It ruled that if the dismissal was pursuant to such a policy, then the French court should analyze the matter in accordance with the ECJ's ruling on the Belgian case – and the "genuine and determining occupational requirement" issue was therefore not relevant.

On the other hand, if the dismissal was not pursuant to such a policy, then that issue was relevant. In particular, the ECJ considered whether it is a permissible "genuine and determining occupational requirement" for an employer to take into account the wishes of a customer to not have to deal with an employee in a headscarf. The ECJ's ruling was a clear "no." It emphasized that a religious characteristic is only rarely a "genuine and determining occupational requirement," and the particular wishes of a customer is a subjective – as opposed to the required objective – consideration. Therefore, in the absence of a neutral policy, the company's dismissal of the engineer was discriminatory.

The Broader Context and Next Steps for EU Employers

Many commentators have viewed the ECJ's ruling as a "win" for employers. That is an overstatement. The ECJ's ruling reaffirms the permissibility of neutral policies prohibiting religious symbols only if they seek a legitimate aim and are consistently enforced. Moreover, the ECJ has emphasized that where such policies disadvantage employees of particular faiths, then the employer may have a duty to provide accommodations to those employees where such accommodations do not create an undue burden. Further, in the absence of such a neutral policy, an employer may not rely on such subjective considerations as a customer's preference to prohibit religious symbols. Together, these principles draw the bounds of an employer's freedom to conduct their business with regard to regulating employees' religious expression.

Indeed, the ruling is consistent with court decisions in other jurisdictions. For example, in France, the Cour de cassation has ruled that workplace regulations may prohibit employees from wearing religious signs, as long as the prohibition is applied neutrally, is proportionate to the aim pursued, and is justified by the nature and context of the particular job duties.4 In the United States, however, the Supreme Court has held that employers are "affirmatively obligate[d]" to make exceptions to neutral employment policies to accommodate employees' religious beliefs and practices, and a failure to do so is discrimination.5

Even a 2013 ruling by the European Court of Human Rights holding that wearing a visible cross was a British Airways employee's right to manifest freedom of religion could be argued as consistent with the ECJ ruling, because the airline permitted the wearing of other religious symbols, including turbans and headscarves.6

In light of the ECJ's ruling, employers operating in EU countries should revisit policies prohibiting religious symbols and ensure that those policies serve a legitimate business aim. They should also ensure that those policies are communicated to all employees clearly and implemented in a consistent manner. While the ruling only involved Islamic headscarves, it also applies to other religious symbols, such as crosses, turbans, and yarmulkes. For example, a manager who prohibits an Islamic headscarf cannot allow visible crosses. Finally, where possible, employers should attempt to accommodate employees who wish to maintain their religious symbols.


1 The Luxembourg-based ECJ interprets and upholds the laws of the European Union ("EU"), and its decisions are binding on courts in the national courts of the 28 EU countries.

2 Judgments in C-157/15 Achibita v. G4S Secure Solutions, and C-188/15 Bougnaoui v. Micropole Univers (Court of Justice of the European Union, March 14, 2017).

3 Council Directive 2000/78/EC of 27 November 2000, establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16). 

4 X v. Association Baby-Loup, No. 13-28.369 (Cour de cassation, June 25, 2014). 

5 Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., 135 S.Ct. 2028 (2015). For more detail on this case, see

6 Eweida v. United Kingdom, ECHR 012 (2013) (European Court of Human Rights, January 15, 2013).  


*Leslie Nicolaï is a Partner with Fromont Briens, a Member of Littler Global

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions