andreas imping arbeitsrecht p 1.jpg

Discrimination - justification of a headscarf ban

In its judgment of October 13, 2022 (C-344/20), the ECJ ruled that a prohibition in a company's work rules on expressing religious or philosophical beliefs by words, dress or otherwise does not constitute direct discrimination "on grounds of religion or belief", provided that this provision is applied generally and without distinction to all employees.


The plaintiff in the main proceedings, who is of the Muslim faith and wears the Islamic headscarf, applied to the defendant employer, a Belgian cooperative, for an unpaid internship of six weeks. Although the employer was in principle positive about the application, it insisted on the plaintiff's declaration that she wanted to comply with the neutrality rule in force in the company, which the plaintiff, however, refused. According to the defendant's work rules, "[t]he employees should undertake ... to respect the company's strict policy of neutrality" and therefore "take care not to express their religious, ideological or political beliefs, 'whatever they may be', in any way, whether by words, dress or otherwise." The plaintiff sought a judicial declaration that the employer had violated, among other things, the provisions of the general anti-discrimination law. The court asked the ECJ for a preliminary ruling on the question of whether religious, philosophical and political beliefs were a single protected characteristic, with the consequence that persons with beliefs other than religious could not serve as a comparator group to establish direct discrimination on the basis of religion. Furthermore, the ECJ was asked to answer the question whether national provisions which protect religious, philosophical and political beliefs separately in each case, in order to reinforce this protection by highlighting the respective particularities, are considered more favorable provisions under Article 8(1) of Directive 2000/78. Finally, the referring court asked whether a general rule of neutrality could be directly discriminatory if it resulted in a worker who wished to exercise her religious freedom by visibly wearing a headscarf being treated less favorably than members of certain comparator groups.

Reasons for Decision

The ECJ confirms its assessment that religion and belief are two sides of the same discrimination ground. This includes religious, ideological and spiritual beliefs, but must be distinguished from political and other views. Nor may there be any deviation from this principle as a result of the Member States' leeway in introducing or maintaining more favorable provisions. Otherwise - according to the ECJ - the wording, context and purpose of this discrimination ground would be called into question and the practical effectiveness of the general framework for the implementation of equal treatment in employment and occupation would be impaired. In other words, the discrimination in question on the grounds of religion and belief must be assessed according to the same standards, member states may not differentiate between the two sides, nor may their courts; the requirement of neutrality, as defined by the company, must cover religions and beliefs equally.

A general neutrality rule could certainly be justified as an indirect disadvantage. The legitimate objective required for this can be the will of an employer to express a policy of political, ideological or religious neutrality in relation to public and private customers. However, this presupposes a genuine, demonstrated need for such a policy of neutrality. Whether religious freedom is to be accorded greater importance than entrepreneurial freedom in the weighing of interests to assess the appropriateness of the neutrality rule depends on the evaluations of national law.

Notes for practice

The ECJ continues its convergence with the case law of the Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) and the Federal Labor Court (Bundesarbeitsgericht, BAG). In their view, the mere will of the employer to pursue a policy of operational neutrality is not sufficient to justify it. Rather, the German courts always require concrete evidence of imminent operational disruptions or economic disadvantages for justification (cf. BVerfG, judgment of January, 27, 2015, 1 BvR 471/10 et al., NJW 2015, 1359; BAG, judgment of August, 27, 2020, 8 AZR 62/19, NZA 2021, 189). The ECJ expressly endorses this strict stance when it considers the mere will of an employer to pursue a policy of neutrality not sufficient in itself to objectively justify indirect unequal treatment on the grounds of religion or belief. The German courts will therefore continue to apply their strict standard when reviewing company neutrality policies in the future. Employers cannot expect a change in national case law.

1:1. This is how we work together. You decide upon a competent partner; he/she will then remain your point of contact. > more