Mrs. S. wishes to work with her headscarf in a private company, but the employer informs her that she will not be allowed to wear it during working hours. Is this legal?

What does the law say?

The employee, like any citizen, enjoys religious freedom which is guaranteed by numerous legal instruments, notably the European Convention on Human Rights, which states that ‘Everyone has the right to freedom of thought, conscience and religion; this right includes […] freedom to manifest his religion or belief, in worship, teaching, practice and observance, either alone or in community with others and in public or private.’ (ECHR, Art. 9, §1).

Neutrality is not imposed as it is in services or companies carrying out a public service mission. Freedom therefore remains the rule.

However, an employer may restrict the religious freedom of their employees if justified by the necessities of the proper functioning of the company or by the exercise of other fundamental rights and freedoms, and the limitations must be proportionate to the aim pursued.

If the employer prohibits the wearing of headscarves at work, their decision must not be motivated by religious or discriminatory criteria.

In accordance with Article L.120-2 of the Labor Code: ‘ No one may impose restrictions on the rights of individuals and collective freedoms that are not justified by the nature of the task to be performed nor proportionate to the aim pursued’. (…) .

The inclusion of a neutrality obligation in the company’s internal regulations must therefore be done under certain conditions specified by law.

Since the entry into force of Law No. 2016-1088 of August 8, 2016, Article L.1321-2-1 of the Labor Code states that: ‘the internal regulations may contain provisions inscribing the principle of neutrality and restricting the manifestation of employees’ beliefs if these restrictions are justified by the exercise of other fundamental rights and freedoms or by the necessities of the proper functioning of the company and if they are proportionate to the aim pursued‘.

The Court of Cassation on November 22, 2017 (13-19.855) provided some clarifications:

It affirmed that an employer could prohibit, via a neutrality clause provided for in the internal regulations or in a service note, the visible wearing of any political, philosophical or religious sign in the workplace. For this, 3 conditions must be met:

1. The provision must be general and undifferentiated: applicable to all employees in the same situation; concerns all visible forms, regardless of size, of expression of beliefs; concerns, together, religious, philosophical or political beliefs.
2. It should only be applied to employees who are in contact with customers. (See on this subject CJEU, March 14, 2017, case. 157/15).
3. The clause responds to a legitimate and proportionate objective to the aim pursued.

If even one of the three conditions is not met, the regulation would then be illegal and the neutrality clause would be unenforceable against employees.

In the absence of such a neutrality clause, an employer cannot prohibit the wearing of religious signs unless they demonstrate a justified necessity (security reason). The limitation can only be within a proportionate framework.

Moreover, the employer cannot prohibit the wearing of a religious sign in order to satisfy the wish of a particular client (CJEU, March 14, 2017, Asma Bougnaoui, v Micropole SA, C188/15.)

In addition, the employer cannot dismiss an employee for the sole reason that she refuses to remove her headscarf in front of customers. The employer must first investigate whether it is possible to offer her a job that does not involve visual contact with customers. To assess this condition, the judge will take into account the constraints inherent to the company. (CJEU, Asma Bougnaoui, case C-188/15; March 14, 2017).

What should I do?

• Request communication of the internal regulations or service note to verify the existence of a neutrality clause.
• Require a written request to remove a religious symbol and the reasons for such a request.
• Communicate to the employer the aforementioned court decisions of the Court of Cassation and the CJEU.
• If you are an employee, you can ask the labor inspectorate to explicitly rule with a reasoned decision on the conformity of this neutrality clause (Labor Code, Art. L.1322-1-1).
• In the absence of a neutrality clause, refer the matter to the Defender of Rights to report discrimination.
• Contact Equitas’ legal department.

APPLICABLE REFERENCES:

Article L.1321-2-1 of the Labor Code; Article L.120-2 of the Labor Code; Art. L.1322-1-1 of the Labor Code. Court of Cassation decision of November 22, 2017 (13-19.855); CJEU, March 14, 2017, case 157/15 ; Asma Bougnaoui, against Micropole SA, C188/15;