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A different take on the headscarf issue Bougnaoui v Micropole SA

In July we reported the Advocate General’s opinion in Achbita v G4S Secure Solutions NV. It was not direct discrimination for an employer to ban a Muslim employee from wearing a headscarf at work if that ban was not based on stereotypes or prejudice against a particular religion, or religions, or against religious beliefs in general. Any indirect discrimination may be justified by the legitimate need to enforce religious and ideological neutrality.

This month, there’s a new case and a new Advocate General opinion that says something different. The French case of Bougnaoui v Micropole SA involved a Muslim woman who refused to remove her headscarf, following a customer complaint about her wearing it. She was dismissed.

She lost her claim for religious discrimination, but her appeal has led her to the European Court of Justice (ECJ). So far, we have the Advocate General’s opinion (not a binding judgment) that there was direct discrimination. Ms Bougnaoui was dismissed because she had manifested her belief by refusing to remove her headscarf; a colleague who had not chosen to manifest their religion would not have been dismissed. It was less favourable treatment on religious grounds. And that direct discrimination could not be excused as a genuine occupational requirement – the headscarf didn’t hinder her ability to do her job. Nor could financial loss justify the discrimination.

What about indirect discrimination? The Advocate General thought it unlikely that the employer’s ban would be proportionate.

We shall have to wait and see what becomes of this conflict of Attorney General opinions. The formal Court decision in both cases is expected toward the end of this year.