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Headscarves and the Court of Justice of the European Union: Two Opposing Opinions

Published on August 1, 2016        Author: 

The Court of Justice of the European Union (CJEU) has to decide on two cases on the wearing of Islamic headscarves at work. Both concern headscarves, which cover the hair and neck, but which leave the face free. The cases were heard together on the 15 March 2016 and the Advocate General’s (AG’s) opinions have been issued, so now it is up to the CJEU to decide. But this is not made easier because the two opinions (one by AG Kokott and the other by AG Sharpston) seem to contradict each other in a number of ways. This post will consider the difference in the interpretation of ‘genuine and determining occupational requirements’. Both cases concern discrimination on the grounds of religion or belief contrary to Directive 78/2000/EC. Article 4(1) of this Directive determines that:

Notwithstanding Article 2(1) and (2), Member States may provide that a difference of treatment which is based on a characteristic related to any of the grounds referred to in Article 1 shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.

This article thus creates an exception to the prohibition of discrimination in situations where having a protected characteristic is a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate. For example, a Catholic school can require a teacher of religious studies to be Catholic.

The first case (Samira Achbita and Centrum voor gelijkheid van kansen en voor racismebestrijding v. G4S Secure Solutions NV), referred by the Court of Cassation in Belgium, concerns a Muslim woman, who worked for G4S as a receptionist and who was permanently contracted out to a third party. She informed G4S that she wanted to start wearing an Islamic headscarf and was told that this was against the employer’s strict neutrality rule in the workplace. When she refused to take off her headscarf at work, she was dismissed. Read the rest of this entry…