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Headscarf decision #2

Bougnaoui and another v Micropole SA

On the same day as Achbita, the CJEU decided another case about headscarves.

Ms Bougnaoui, a Muslim, was employed in a customer-facing role. A customer complained to the company about Ms Bougnaoui wearing her headscarf while on a site visit. She was eventually dismissed for continuing to wear it.

The CJEU considered whether, if Ms Bougnaoui had been discriminated against, that treatment could be justified by the ‘genuine occupational requirement’ defence. Could an employer’s willingness to take account of the wishes of a customer no longer to have services delivered by a worker who wore a headscarf be considered to be genuine and determining occupational requirement?

The answer is no. Where a customer has said that they don’t want to work with someone who wears a headscarf, that does not amount to an occupational requirement. A genuine occupational requirement is objective; it’s about the essentials of the job and the way it is carried out. Taking account of this sort of objection from a customer introduces subjectivity. And dismissing a worker for refusing to remove her headscarf in these circumstances would be direct discrimination.