With the increased reach of the populist movement and changing demographics, several European countries have been confronted with the need to define secularism and freedom of religion in a way where each of these concepts do not impinge on the rights of the other. This has dominated several discussions in politics, law, education, and social interactions throughout Europe.

One issue that stands at the forefront of these arguments is the wearing of the headscarf by Muslim women in Europe as a practice of their faith. The Court of Justice of the European Union (CJEU), the highest court in the European Union with regards to European Union law, provided judgments on two cases involving the headscarf in March 2017.

In Samira Achbita v. G4S Secure Solutions NV (G4S), the CJEU was asked to provide guidance on the interpretation of Council Directive 2000/78 as it related to the dismissal of Ms. Achbita, an employee of G4S, for wearing a headscarf as part of her religious beliefs. The Council Directive 2000/78 provides that the “principle of equal treatment” means that there will be no direct or indirect discrimination based on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation. Furthermore, the Council Directive highlights that indiscrimination occurs when apparently neutral provisions, criteria, or practice put persons of a particular religion, disability, age, or sexual orientation, at a particular disadvantage unless it is “objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.”

G4S stated that the company has a policy of not allowing employees to wear any political, philosophical, or religious signs as it may compromise the visibility of G4S’s position of neutrality. The Court ruled that there was no direct discrimination as the Directive did not single out a specific group of people or religion to target and was facially neutral. The Court did leave room to say that the rule may constitute indirect discrimination if persons of a particular religion or belief were put at a particular disadvantage, “unless justified by a legitimate aim” and the means of achieving that aim are appropriate and necessary.

Similarly, in Asma Bougnaoui v. Micropole, SA (Micropole), Ms. Bougnaoui was dismissed from her employment at Micropole because of her refusal to remove the headscarf that she wore for religious reasons, and about which some customers of the company had complained. However, here the CJEU ruled that the “the willingness of an employer to take account of the wishes of a customer no longer to have the services of that employer provided by a worker wearing an Islamic headscarf cannot be considered a genuine and determining occupational requirement within the meaning of that provision.” Continue reading →