On May 31, 2016, the Advocate General (“AG”) of the European Court of Justice issued its opinion in a case relating to a Muslim employee wearing a headscarf at work. In the case, Samira Achbita v. G4S Secure Solutions NV, Case C-157/15, the AG stated that a neutral policy prohibiting employees from wearing visible religious symbols was not direct discrimination under Article 2(2)(a) of Directive 2000/78 EC, the EU Directive that addresses discrimination in the workplace. Furthermore, the AG indicated that such a policy may not constitute indirect discrimination either, and therefore not be illegal, provided it is based on a legitimate and proportional policy requiring religious or ideological neutrality in the workplace. This decision, while not binding, stands in stark contrast to the law on the subject in the United States, where just in 2015 the Supreme Court held that failing to hire an applicant because she wore a headscarf constituted discrimination.

In Achbita v. G4S, the plaintiff, Samira Achbita, was an employee of a global security firm. Achbita is Muslim, and for over three years followed a company policy that banned wearing any visible religious, political or philosophical symbols. In April 2006, she announced to the company that she intended to wear a headscarf during working hours for religious reasons. In June 2006 her employment was terminated for violating company policy. She sued the company in a Belgian labor court for wrongful dismissal on the grounds of direct religious discrimination. After winding its way through the courts, in 2015 the Belgium Court of Cassation (the court of last resort) certified a question to the European Court of Justice to determine whether prohibiting a Muslim employee from wearing a headscarf in the workplace constitutes direct discrimination under EU Directive 2000/78 EC.

The AG held that the policy was not direct religious discrimination because it was not based on stereotypes or prejudices against one religion in particular as compared to other religions. The AG did rule, however, that a policy banning religious garb could constitute indirect religious discrimination if it was not justified by a legitimate aim. Quoting the EU Directive, the AG held that a genuine and determining occupational requirement is a legitimate aim, but that a rule enforcing that requirement must be proportionate. The AG first ruled that a public neutrality rule was a legitimate aim, since it was “essential” to avoid the impression that customers may associate the Company with the religious beliefs expressed by an employee’s dress. The ruling also noted the rule could qualify as an “occupational requirement” in order to maintain “brand image.”

Turning to whether the ban was a proportionate means of achieving the legitimate aim, the AG made two key rulings. First, the AG held that a total ban on religious garb was necessary to achieve a policy of neutrality. Second, the AG determined that the rule would not create an undue prejudice to religious employees, since, “While an employee cannot ‘leave’ his sex, skin colour, ethnicity, sexual orientation, age or disability ‘at the door’ upon entering his employer’s premises, he may be expected to moderate the exercise of his religion in the workplace, be this in relation to religious practices, religiously motivated behaviour or (as in the present case) his clothing.” Therefore, the AG ruled that an employee may be required to have a “measure of restraint” in his or her religious expression at work, and the level of restraint required depends on the circumstances of the case. In particular, the AG indicated that courts should assess the following factors when determining how to strike a “fair balance between the conflicting interest[s]:”

• The size and conspicuousness of the religious symbol;

• The nature of the employee’s activity;

• The context in which the employee must perform his or her activities;

• The nationality of the company.

Finally, the AG also ruled that employees wearing visible signs of their religious beliefs may be “prejudicial to the rights and freedoms of others” by having an impact on coworkers and customers, and it may affect the Company’s business.

As noted above, this ruling is not binding, and it remains to be seen whether its reasoning is followed by the Court of Justice of the European Union (“CJEU”) and becomes binding precedent for the EU. (A case dealing with the same question, Bougnaoui v. Micropole Univers, C-188/15, currently is pending before the CJEU.) Still, the decision stands in stark contrast to the law in the United States, and multinational employers should be aware of the greater protections afforded religious garb in the United States.

In the United States, under Title VII of the Civil Rights Act of 1964, an employer must accommodate an employee’s religious garb even if it violates a workplace policy, unless the accommodation would be an undue hardship on the company. A major case on the topic, EEOC v. Abercrombie & Fitch Stores, was decided last year. The case turned on whether the failure to hire a Muslim applicant because she wore a headscarf that would have violated a workplace policy constituted religious discrimination under Title VII. (For a full review of the decision, please see here). The Supreme Court, in an 8-1 decision, held that to make out a religious discrimination claim, the plaintiff, “need only show that his need for [a religious] accommodation was a motivating factor in [an] employer’s decision,” even if the employer did not have actual knowledge of the applicant or employee’s religion or need for an accommodation. This stands in stark contrast to the reasoning by the AG in Achbita v. G4S, under which Abercrombie’s workplace policy would likely have been a valid reason to not hire an applicant who would need a religious accommodation.

Employers operating in both the United States and the European Union should be aware of the different standards applied to religious garb and expression in the workplace. We will continue to monitor whether the AG’s opinion is adopted on a wider scale in the European Union, but if this decision stands, it will herald a widening gulf between the conception of religious discrimination, and protections for religious expression in the workplace, between the United States and Europe.