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According to the ECJ ban on wearing the veil or other religious symbol at work it is not discriminatory


According to the ECJ ban on wearing the veil or other religious symbol at work it is not discriminatory


According to the Court of Justice of the European Union (TWENTY) the prohibition of the use of visible signs of political convictions, philosophical or religious is apt to ensure the proper application of a regime of neutrality, provided that the regime is actually pursued in a consistent and systematic.

The Court has issued two judgments, Date 14 de marzo de 2017, in Cases C-157/15, and C-188/15 where the use of religious symbols is analyzed, as may be the Islamic veil, in the field of labor and the possibility that prohibit its use may be considered discriminatory.

Background of both

In the first of judgments, Case C-157/15, the case of a woman of the Muslim faith is examined, hired as receptionist by a private company providing reception services and hosting to customers. In the company governed an unwritten rule prohibiting employees carry visible signs of their political beliefs, philosophical or religious beliefs in the workplace.

The worker informed the company will bring its Islamic veil, what the employer refused, to be contrary to the neutrality that the company had tax. It was finally farewell, It is taken the matter to court (Belgian). The court filed question, As it had doubts as to the interpretation of the EU directive on equal treatment in employment and occupation. essentially, the court asked to ascertain whether the prohibition of wearing a headscarf arising from a general internal rule of a private company constitutes direct discrimination.

In the second case, Case C-188/15, a citizens', also of Muslim faith, It was informed, before being hired, that use the Islamic headscarf could be a problem when he was in touch with customers. Finally she was hired and used the handkerchief in your workplace. A customer complaint -whose workplace was sent working for labor issues- It led to the dismissal. The company had reiterated to him the principle of necessary neutrality to customers and had asked him to stop wearing the veil, what the employee refused. Challenged the dismissal before the French courts, the court of appeal filed question, essentially asking whether an employer will take into account the wishes of a client in this sense can be considered a "genuine and determining occupational requirement 'within the meaning of Directive.

Neutrality clothing. internal rules that do not involve direct discrimination

The Court analyzes the Directive 2000/78 / EC, establishing a general framework for equal treatment in employment and occupation, and what it means as “principle of equal treatment”. While the standard does not define the concept of “religion” it refers to the ECHR and the constitutional traditions common to the Member States. So, considers that the concept of “religion” It includes both having religious convictions as the freedom of individuals to publicly express these convictions.

In the first case, the company noted an internal rule of neutrality on any visible signs political convictions, philosophical or religious, trying equally to all workers Company. In this respect this rule NO establishes a difference in treatment based directly on religion or belief in the meaning of Directive.

It could be however indirect discrimination? According to the Court to determine this aspect is for the national court to determine, and check that the company had established, before dismissal, a general, undifferentiated regime in the matter, and whether the prohibition concerns only workers who are in contact with customers.

Indirect discrimination, according to the court, It could objectively justified by a legitimate aim. The desire of a businessman offering a neutral image to its customers both public and private sector has a legitimate character, particularly when only concerns workers who are in contact with customers, since this desire is linked to free enterprise, recognized in the Charter. Besides the prohibition of use of such visible signs (including the veil), it is suitable for ensuring the correct application of a regime of neutrality, provided that the regime is actually pursued in a consistent and systematic.

Take into account the wishes of a client is not a genuine occupational requirement

In the second case analyzed, in which the employee was terminated before a complaint from a customer for the use of the Islamic veil, the Court indicates whether the dismissal was not founded or breach of an internal company rule prohibiting the use of visible signs of political convictions, philosophical or religious, for the national court.

As regards consider if a customer desires can be an occupational requirement for this purpose, indicates that only in very limited circumstances a linked in particular to religion characteristic may be an essential and determining occupational requirement; this concept implies a requirement objectively dictated by the nature of a professional activity or the context in which it is carried out, and does not cover subjective considerations, as the will of the employer to take into account the particular customer wishes.

Must start with the recital 23 de la Directive 2000/78 / EC, aforementioned, what does it say: “In very limited circumstances, a difference of treatment may be justified where a characteristic related to religion or belief, to disability, age or sexual orientation constitutes a genuine and determining occupational requirement, when the objective is legitimate and the requirement, proportionate. Such circumstances should be included in the information provided by the Member States to the Commission.”

In such circumstances it concludes that this willingness to take into account the wishes of a client can not be considered essential and determining occupational requirement within the meaning of Directive, which Does not rule out the existence of discrimination. Es decir, which may constitute discrimination.