The French Supreme Court provides guidance to employers in France on how to deal with employees who wear religious symbols in the workplace.

In France, the issue of wearing a religious symbol and, more specifically, of wearing an Islamic headscarf in the workplace is extremely sensitive.

According to article 1 of the French Constitution, “France shall be an indivisible, secular, democratic and social Republic. […] It shall respect all beliefs.” This principle of separation of church and state (and, more generally, of state and all religious beliefs) takes its roots in the French Revolution, when it was crucial for the revolutionaries to free the government from the influence of the Catholic Church. This principle is also reflected in article 10 of the French Declaration of Human and Civic Rights of 26 August 1789: “No one may be disturbed on account of his opinions, even religious ones, as long as the manifestation of such opinions does not interfere with the established Law and Order” and was later embodied in a law on 9 December 1905.

The principle of secularism has imposed strict neutrality of public services. Under French law, if all public agents must equally treat all individuals and respect their freedom of beliefs, a public agent who manifests his or her religious belief is considered in breach of his or her contractual obligation.

The balance point in the private sector between (i) the principle of secularism and (ii) the principle of not discriminating based on religious beliefs has been brought to light by two recent decisions from the French Supreme Court.

1. Decision of 19 March 2013: The principle of secularism in article 1 of the French constitution is not applicable to private-sector employees who do not run a public service.

In this particular case, a nursery had inserted in its internal regulation a rule that all employees, whatever their functions, must not wear signs of religious belonging. Notwithstanding this rule, an employee came to work wearing an Islamic headscarf and refused to take it off while working. The employee was then dismissed for misconduct.

The employee filed a claim before French employment courts for discrimination according to religious belief.

For its defense, the nursery responded that the children who were kept in the nursery should not, taking into account their young age, be faced with ostentatious symbols of religious affiliation.

Lower courts decided that the dismissal was justified, and the case went up to the French Supreme Court, which stated in its decision on 19 March 2013 that “the principle of secularism of article 1 of the French Constitution is not applicable to employees of the private sector that do not run a public service. [This principle] cannot therefore be used to deprive [the employees] from the protection of the provisions of the French Labor code.”

The French Supreme Court then made clear that a distinction must be made between employees of the private sector not running a public service and employees of the public sectors or employees of the private sector running a public service. In this case, even if the nursery had a mission of general interest, the French Supreme Court deemed that it could not be considered running a public service.

However, following European Union requirements, the French Supreme Court also mentioned that such bans could, under certain circumstances, be allowed if the following three cumulative criteria were met:

    The ban is justified by the nature of the tasks to be performed.

    The ban responds to a determining and essential professional requirement.

    The ban is proportionate to the result searched.

Lower courts, however, resisted this decision, and the case has been brought before the French Supreme Court for a second time.

In a decision on 25 June 2014, without reconsidering its previous position, the French Supreme Court approved the decision of a court of appeals that validated the nursery’s dismissal of the employee. In this decision, the French Supreme Court took into account the particularities of this nursery (e.g., the nursery was small and employed only 18 employees who were all in contact with children, and the nursery was created to cater to children from underprivileged backgrounds and to promote their social insertion and that of their mothers without distinction as to their political or religious beliefs) and considered that the three criteria set out in its decision of 19 March 2013 were met.

The French Supreme Court has been asked to provide more details on the circumstances where the above three criteria can be met.

2. Decision of 9 April 2015: The French Supreme Court asks the European Court of Justice to make a decision on the circumstances where an employer can prevent an employee from wearing an Islamic headscarf.

In another case, an employee had been hired as a study engineer by an information technology (IT) consulting company. After a she completed a project within a client’s company, her employer asked her to withdraw her Islamic headscarf in the future during her external interventions. Her employer company mentioned that it was acting in response to a client’s request and that the client informed the company that its employees had been inconvenienced by the Islamic headscarf that she wore. She refused to withdraw her headscarf and was dismissed for disciplinary reasons.

The employee has challenged the validity of this dismissal, arguing that it constituted a discrimination based on religious beliefs.

The employer company responded by using the decision of the French Supreme Court from 19 March 2013 and argued that the circumstances met the three criteria (a, b, and c) mentioned above.

Given the sensitivity of this matter, the French Supreme Court has decided to refer this question to the European Court of Justice under the following terms:

Can the provisions of article 4§1 of the directive 78/200/EC of the Council dated 27 November 2000 . . . be interpreted in a way that constitutes a determining and essential professional requirement, by reason of the nature of the professional activity or the condition of its performance, the wish of a client of an IT consulting company to not see the IT services performed by an employee, a study engineer, wearing an Islamic headscarf?

The French Supreme Court likely already has its opinion on this question, but given the political debate that followed its decision on 19 March 2013, it has decided to search for the support of a higher European authority to legitimize its position.