Headscarves return to the CJEU: Unfinished business

Abstract

In 2017, the CJEU brought out its judgments in two cases concerning bans on the wearing of Islamic headscarves at work as possible discrimination on the grounds of religion or belief under Directive 2000/78/EC. These judgments led to heavy criticism, mainly because the CJEU did not do a rigorous proportionality test and left a number of questions open. Two recent preliminary references from courts in Germany present the CJEU with an opportunity to expand on the earlier judgments and to answer the questions they left open. It is submitted that the CJEU should deal with this unfinished business in a way which respects Europe’s religious diversity and ensures that the ground of religion and belief does not become the poor relation of EU anti-discrimination law.

Headscarf-wearing employees and the CJEU: what employers can and cannot do

“…267, and footnote 239. The argument has also been put forward in academic literature, see the authors referred to in Howard 2020 [4] footnote 45. 41 See: Blair [1] p. 411; McColgan, [7] p. 18; Loenen [6] p. 67.…”

“…6 Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation [2000] OJ L 303/16, prohibiting discrimination on the grounds of religion or belief, disability, age and sexual orientation. 7 For an analysis of these cases and the critique raised against the judgments see Howard, 2017 [3] and Howard 2020 [4]. The latter discusses the preliminary references in joint cases Wabe and Müller.…”

“…IX challenged her release from work as direct religion or belief discrimination and as discrimination on the grounds of gender and ethnic origin. 4 Müller concerned MJ, a Muslim employee of a company which runs a number of chemist shops. On her return from parental leave in 2014, the employee started wearing a headscarf based on her religious beliefs.…”

“…Case C-157/15 Samira Achbita and Centrum voor Gelijkheid van Kansen en voor Racismebestrijding v G4S Secure Solutions NV, EU:C:2017:203 3. Case C-188/15 Asma Bougnaoui, Association de Défense des Droits de l'Homme (ADDH) v Micropole Univers SA, EU:C:2017:204 4. Wabe and Müller, op.…”

“…cit. supra, paras 30-32.9 Ibid., paras 37-38.10 Howard 2017[3], p. 356; Howard 2020[4], p. 12. 11 Achbita, op.…”