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By Michael Scaturro
June 6—The European Court of Justice's advocate general said May 31 that private companies in Europe can ban all visible religious symbols in the workplace. According to legal experts consulted by Bloomberg BNA, the opinion requires employers to allow all religious symbols or none at all. Although nonbinding, the opinion is significant because it is likely to be followed by a similar binding legal ruling later this year by the ECJ, the experts told Bloomberg BNA. A binding ruling would redefine workplace dress codes throughout the 28-nation EU and could thus affect multinationals operating in the European Union.
Advocate General Juliane Kokott's opinion—in which she said a Belgian company was justified in firing an employee who refused to remove her Muslim head scarf (hijab) at work—jibes with similar religious symbol and head scarf bans in public buildings and schools in France, Germany, Belgium and elsewhere in Europe
“Companies will have to find a balance between giving employees room to express themselves and clients' needs,” Tom Claeys, an employment lawyer at Van Bael & Bellis in Brussels, told Bloomberg BNA June 3.
“Companies will have to ask themselves whether they are providing the client an atmosphere of neutrality,” Claeys continued. “Some companies won't act, but others will ask whether it's acceptable to allow, for example, a receptionist to wear a cross or a hijab.”
An employer's workplace religious symbol ban should apply to all visible religious symbols without distinction, Judge Kokott wrote in her opinion, and should “just as easily affect a male employee of Jewish faith who comes to work wearing a kippah, or a Sikh who wishes to perform his duties in a Dastar (turban), or male or female employees of a Christian faith who wish to wear a clearly visible crucifix or a T-shirt bearing the slogan ‘Jesus is great’ to work.
In some instances, however, a company may institute what Kokott called a proportionality test looking at “the size and conspicuousness of the religious symbol, the nature of the employee’s activity, the context in which she has to perform that activity, and the national identity of the Member State concerned” before banning religious symbols, head coverings and other items.
“The proportionality test will, in practice, remain key to determine for each situation whether or not such a ban is justified, even if the ECJ ultimately adopts this opinion,” Emmanuel Plasschaert, a partner at Crowell & Moring LLP in Brussels, told Bloomberg BNA June 3.
Employers are seeking legal certainty on this issue so that their policies won't expose them to discrimination lawsuits, Belgian labor lawyers said.
“The ECJ's decision is of course expected with great interest,” Plasschaert added. “It will be a landmark decision. A lot of companies are struggling with these questions and legislation and case law are fragmented. The ECJ needs to bring clarity here.”
Legal experts consulted by Bloomberg BNA expect the ECJ to follow the advocate general's decision.
“The ECJ might say that it's not discrimination against a specific religion if the employer asks the employee not to show ostensible signs of belonging to a specific religion,” Bruno Blanpain, a partner at Marx Van Ranst Vermeersch & Partners in Brussels, told Bloomberg BNA June 3. “The employer would possibly have the right to take disciplinary action against an employee or, in supreme instances, terminate employment for insubordination if it isn't acted on.”
Given the tension in Europe in the wake of Islamic terrorist attacks in Paris and Brussels and a migration crisis stemming from ongoing wars in Syria and Afghanistan, Blanpain called Judge Kokott's decision “brave.”
“It was a courageous decision in these times,” Blanpain said. “Some people are concerned that if they take a stand against religious symbols in the workplace, like head scarves, they may become the target of terrorist attacks. The situation has made people in Belgium a bit nervous.”
The ECJ is expected to hand down its final ruling before the summer holidays in July or in September or October, Nikki Hollis, a spokeswoman for the ECJ told Bloomberg BNA June 3.
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For more information on European Union HR law and regulation, see the European Union primer.
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