Discrimination – Headscarf ban at the workplace might be legitimate

However, due to the religious freedom particularly protected in Germany under Article 4 of the German Basic Law, the BAG set the hurdles for employees higher than the ECJ and ruled, in its decision of August 27, 2020, file no.: 8 AZR 62/19, that a general headscarf ban cannot be justified, even by reference to neutrality, but that a ban would rather require more specific indications for any disturbances caused by someone wearing a headscarf.

In its current decision of July 15, 2021, too, the ECJ is dealing with two German companies’ neutrality requirements, against which the two concerned employees objected on the grounds of their religious freedom.

In the case C-341/19, a German drugstore chain had issued the instruction to not wear any prominent, large signs of a political, ideological or religious nature at the workplace. In Case C-804/18, the operator of a large number of daycare centers had issued a ban on wearing visible signs of political, ideological or religious beliefs in the workplace when employees have contact with parents or their children.

With the BAG’s decision of January 30, 2019 (previous instance Nuremberg LAG, file no.: 7 Sa 304/17) and the Hamburg AG’s decision of November 21, 2018, file no. 8 Ca 123/18, the courts asked the ECJ to clarify the question whether a private-law company’s corporate neutrality requirements prohibiting to wear any visible signs of any political, ideological or religious beliefs are consistent with EU law. This involves in particular the question of weighing entrepreneurial activity on the one hand against religious freedom on the other hand.

In its decision, the ECJ determines that the corporate neutrality requirement constitutes an indirect religious discrimination which might, however, be justified as the employer’s will to express a political, religious and ideological neutrality generally constitutes a legitimate objective and is recognized as entrepreneurial freedom.

However, this does not allow the employer to issue a general headscarf ban.

The ECJ further specifies the requirements for a justification to the effect that an employer must have a verified actual requirement for neutrality, for example, that any violation of such neutrality would entail the risk of an actual impairment of his entrepreneurial freedom.

Furthermore, according to the ECJ, a policy of neutrality must be suited to achieve the employer’s objectives, i.e. it must be implemented consistently. This can be achieved by prohibiting the wearing of all visible, even smaller signs. Differentiating regulations, for example, according to a symbol’s conspicuity or size might call into question the employer’s aim for neutrality and might result in the unequal treatment not being justified.

Ultimately, the ECJ expressly ruled that national provisions on the religious freedom’s protection must also be taken into account when assessing a measure’s appropriateness. 
On the basis of the ECJ’s response, German courts will now have to make their decisions.

Note

In our opinion, the decision does certainly not grant to employers more options for restrictions. General headscarf bans are likely to continue to be inadmissible. However, a ban may be justified in exceptional cases if the employer can demonstrate concrete interference with its entrepreneurial freedom and consistently implements its neutrality policy.

As such, the issue still requires a comprehensive examination in each individual case, whereby the freedom of religion must be taken into account in particular if it is specially protected by national provisions, as in Germany by Article 4 of the German Basic Law. In this respect, national law can provide stricter requirements for protection than Union law.