CJEU rules prohibitions on religious clothing in workplaces may not constitute direct discrimination

The question was referred to the CJEU by the Labour Court of Hamburg, Germany, and the German Federal Labour Court after separate actions were raised in each court by women, IX and MJ, who were prohibited from wearing Islamic headscarves in their workplace. The employers involved in the original actions, WABE eV and MH Müller Handels GmbH, were respectively an operator of child day care centres and an operator of drugstores across Germany. 

Observations were submitted by the original parties to the cases, as well as by the European Commission and the governments of Greece, Poland, and Sweden. 

Policy of neutrality 

IX was suspended by WABE from her employment duties after refusing to comply with a rule prohibiting its employees from wearing any visible political, philosophical, or religious sign at the workplace when they are in contact with the children or their parents. In 2016, she began to wear an Islamic headscarf, but following her return from parental leave in 2018, WABE adopted a new policy described as being aimed at pursuing a policy of political and religious neutrality, including the prohibition of wearing signs of religious belief. This was partially explained as a measure to prevent children from being influenced in respect of religion. 

The Labour Court referred the case for a preliminary ruling, considering that IX may have been the subject of direct discrimination on the grounds of her religion. In the event of there being no direct discrimination, the court wished to know whether a policy of neutrality adopted by an undertaking may constitute indirect discrimination on the grounds of religion or, since the challenged prohibition was primarily used in cased involving women, indirect discrimination on the grounds of gender. 

Similarly, MJ challenged the legality of an instruction given to her by MH to refrain from wearing conspicuous, large-sized political, philosophical, or religious signs in the workplace. She had been employed by them since 2002, but in 2014 decided to wear an Islamic headscarf. Following an initial refusal to remove the headscarf, she was moved to a position elsewhere in the company where she was allowed to wear it, but in 2016 she was sent home after refusing to comply with another instruction to remove it. 

MH also justified its actions as being in the course of pursing a policy of neutrality. Following an action before the national courts in which MJ’s complaint was upheld, MH appealed the case to the Federal Court, which referred the case to the CJEU, considering that it required to assess the legality of the instruction given to MJ before it was able to resolve the case. 

Both cases involved EU Directive 2007/78, under which any direct discrimination based on religion or belief is prohibited throughout the Union, under a principle of equal treatment. It was questioned whether indirect discrimination could be justified under this Directive, on the basis of an internal rule of a private undertaking. 

No difference of treatment 

In its consideration of the questions following the Advocate General’s opinion in February 2021, the CJEU observed: “The Court has already held that such a rule does not constitute [religious] discrimination provided that it covers any manifestation of such beliefs without distinction and treats all workers of the undertaking in the same way by requiring them, in a general and undifferentiated way, inter alia, to dress neutrally, which precludes the wearing of such signs. 

It explained further: “Since every person may have a religion or belief, such a rule, provided that it is applied in a general and undifferentiated way, does not establish a difference of treatment based on a criterion that is inextricably linked to religion or belief.” 

Noting that WABE had also required another employee to remove a Christian cross under the same policy, it went on to say: “It appears prima facie that the internal rule at issue in the main proceedings was applied to IX without any difference of treatment by comparison with any other person working for WABE, with the result that it cannot be considered that IX suffered a difference of treatment directly based on her religious beliefs, for the purpose of Article 2(2)(a) of Directive 2000/78.” 

The Court concluded on this referral: “A difference of treatment indirectly based on religion or belief, arising from an internal rule of an undertaking prohibiting workers from wearing any visible sign of political, philosophical or religious beliefs in the workplace, may be justified by the employer’s desire to pursue a policy of political, philosophical and religious neutrality with regard to its customers or users, provided that that policy meets a genuine need on the part of that employer, which it is for that employer to demonstrate, taking into consideration, inter alia, the legitimate wishes of those customers or users and the adverse consequences that that employer would suffer in the absence of that policy.” 

No visible manifestation 

Turning to MJ’s case, the CJEU said: “A policy of neutrality within an undertaking can be effectively pursued only if no visible manifestation of political, philosophical or religious beliefs is allowed when workers are in contact with customers or with other workers, since the wearing of any sign, even a small-sized one, undermines the ability of that measure to achieve the aim allegedly pursued and therefore calls into question the consistency of that policy of neutrality.” 

The Court concluded: “A prohibition which is limited to the wearing of conspicuous, large-sized signs of political, philosophical or religious beliefs is liable to constitute direct discrimination on the grounds of religion or belief, which cannot in any event be justified on the basis of that provision.” 

For these reasons, the Court ruled that Articles 1 and 2 of Directive 2000/78 is to be taken to mean that an internal rule of an undertaking prohibiting workers from wearing any visible sign of political, philosophical, or religious beliefs in the workplace does not constitute direct discrimination provided that the rule was applied in and general and undifferentiated way. Further, a difference of treatment indirectly based on religion of belief could be justified by a policy of neutrality provided that it met a genuine need on the part of the employer.