CAN A PRIVATE EMPLOYER PROHIBIT A MUSLIM WOMAN FROM WEARING A HEADSCARF AT WORK?
Summarized: A private employer generally may not prohibit a Muslim woman from wearing a headscarf at work. A headscarf ban at the workplace is only permissible when an internal policy exists which prohibits all religious, political or ideological symbols. This policy must, however, include even the smallest sign or symbol and be a necessary measure which fulfills a genuine purpose. The employer must also be able to prove that the headscarf brings them economic disadvantage. This is difficult for the employer to do in practice.
The General Act on Equal Treatment explicitly prohibits any discrimination on grounds of religion.1 An employer may therefore generally not prohibit the wearing of a headscarf at work.2
There are, however, exceptions to this rule. A headscarf-ban is permissible when religion is a professional requirement. Thus, according to Section 9 (1) of the General Equal Treatment Act, religious communities may reject applicants who do not belong to the same religion if their religion constitutes a justified professional requirement.3
A headscarf ban is also permissible according to Section 8 (1) of the General Equal Treatment Act when not wearing it because of the nature of work or the conditions of the work represent an important and decisive professional requirement. The European Court of Justice ruled that “subjective considerations, such as the willingness of the employer to take account of the particular wishes of the customer” do not constitute an important and decisive professional requirement either.4 Any unproven fears of financial disadvantages on part of the employer as a result of the wearing of a headscarf are also insufficient. Headscarf bans based on this reason are therefore impermissible.5
However, in many cases, the European Court of Justice has ruled that a headscarf ban can be permissible when it only bases itself off a general internal policy that forbids the wearing of any visible political, ideological or religious symbols.6 In such a case, the discrimination is to be classified not as indirect but direct.
An indirect discrimination could be justified, when the employer is able to prove the real need for a policy of neutrality and the discriminatory action is cut out to apply the neutrality rule in an orderly way and prohibiting the headscarf is absolutely necessary in light of the negative consequences the employer would have to face.7 This ban would have to include every smallest visible sign of conviction. A ban of only the most visible signs could continue to pose as direct and unjustifiable discrimination.8
However, such a headscarf ban would only be necessary for employees who need to work with customers.9 The employer would then be required to make sure whether the headscarf-wearing employee could even be employed in a position with no direct customer contact.10 In many cases, this decision was portrayed in the press as a kind of ’carte blanche’ for employers to then start issuing blanket precautionary neutrality bans.
The Nuremberg Regional Labour Court ruled that the policy of religious-political neutrality of companies, which the European Court of Justice assessed as a legitimate goal) was not an asset of entrepreneurial freedom worthy of protection by itself. Rather, the entrepreneur must claim an economic disadvantage.11 In this case, the employer was a retail company. The court also remarked that customers of different backgrounds would visit the store and even headscarf-wearing women would come to shop.12 According to the court, the proportion of Muslim women wearing headscarves has increased in the past years and have now become visible in daily life, not only to be found as customers in the retail trade but also as sales staff. Furthermore, there is relatively little contact between the customers and workers because of the customers obtaining products from the shelves by themselves, taking them to the cashier, paying for them and leaving the store immediately after. There isn’t particularly a common work environment, as may be the case with a service provider whose employees work at the customer’s premises.
In the end, it would all boil down to whether or not the employer can, in any case, prove that a headscarf ban is appropriate, necessary and reasonable for avoiding losses.
1 See Section 7 in conjunction with Section 1 General Act on Equal Treatment.
2 BeckOK, ArbR/Rolfs, 48. Ed. 1.6.2018, KSchG, § 1 margin 320.
3 Fuchs in Allgemeines Gleichbehandlungsgesetz, 46. Ed. 1.5.2018, Section 9 margin 1.
4 European Court of Justice, case from 14.03.2017 in Case C-188/15 (Bougnaoui), margin 40.
5 Federal Labour Court, case from 14.03.2017, file 2 AZR (revision proceedings) 472/01.
6 European Court of Justice, case from 14.03.2017, file C 157/15 (Achbita), margin 44.
7 European Court of Justice, ruling from 15.07.2021, cases C‑804/18 and C‑341/19, margin 70.
8 See above, margins 55, 78.
9 European Court of Justice, case from 14.03.2017, file C 157/15 (Achbita), margin 42.
10 See above, margin 43.
11 Nuremberg Regional Labour Court, decision from 27.03.2018, 7 SA 304/17, margins 56, 61.
12 See above, margin 62.