EU: Company Rule Banning Religious Symbols Is Not Direct Discrimination

Global HR

​On Oct. 13, the European Union (EU) Court of Justice considered whether an internal company rule in Belgium banning the display of religious, philosophical and spiritual symbols could constitute direct discrimination. The court held that it does not. As such, the court did not deviate from previous case law in the context of bans on religious, philosophical and spiritual symbols in the workplace.

Preliminary Facts

The dispute concerns a woman wearing an Islamic headscarf who had applied for an internship as a trainee at a social housing company. This application was refused because the woman had indicated during a preceding interview that she would not be willing to remove her headscarf to comply with the company’s neutrality policy. The woman filed a claim before the labor court alleging direct discrimination for wearing a headscarf and seeking a cease-and-desist order from the discriminatory treatment.

The labor court consequently addressed two questions to the Court of Justice for clarification. On the one hand, whether the terms “religion and belief,” as reflected in the European Employment Equality Directive, should be regarded as one criterion or as two criteria to be fulfilled separately. On the other hand, whether a ban within a company on wearing certain symbols or attire constitutes direct discrimination.

Reasoning of the Court

The Court of Justice indicated that the terms “religion and belief” should be viewed as one in light of the European directive. They therefore constitute one single ground for discrimination, encompassing religious belief and philosophical and spiritual belief.

Regarding a possible direct discrimination, the court in this case decided that there is no such discrimination and referred to its precedents. An internal regulation prohibiting within a company the expression of religious, philosophical or spiritual views (by wearing certain garments or symbols) is not direct discrimination as long as it is a general regulation and applied without any distinction. Equal treatment with respect to such provisions within a company is therefore essential.

Indirect Discrimination?

However, the court indicated that this decision does not eliminate the fact that the prohibition provision could still constitute indirect discrimination based on religion or belief. In other words, it is up to the Brussels French-speaking labor court to decide whether the application of the apparently neutral provision has the effect of subjecting persons of a particular religion or belief to certain disadvantages. The labor court will have to consider whether the prohibition provision pursues a legitimate aim and whether it is appropriate and necessary. The mere desire of the employer to prioritize a neutrality policy is not in itself sufficient to justify indirect discrimination.

It is therefore up to the labor court to weigh the various interests, on the one hand relating to religion and religious beliefs and, on the other, those arising from the freedom of undertaking.

Kris De Schutter and Yousra Belakhdar are attorneys with Loyens & Loeff in Brussels. © 2022 Loyens & Loeff. All rights reserved. Reposted with permission of Lexology

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