Headscarf Cases Before the CJEU: Achbita and Bougnaoui
11 Pages Posted: 11 May 2020
Date Written: April 16, 2020
This article analyzes the first two judgments of the Court of Justice of the European Union (CJEU) concerning the wearing of headscarf at work, Achbita and Bougnaoui . In the mentioned joint cases the CJEU ruled that dismissing the worker by a private sector employer for wearing a headscarf constituted a lawful indirect discrimination. The article will first examine whether the concerned action in Achbita constitutes direct or indirect discrimination under the EU Employment Equality Directive 2000/78/EC. Furthermore, it will assess whether the private enterprise can pursue the policy of neutrality which is a duty to be fulfilled solely by the state. A very loose justification test of the CJEU, which failed to properly examine the legitimacy of the pursued aim, so-called neutrality, and the necessity of the restrictive measure will also be analyzed. On the part of the analysis of direct and indirect discrimination, and justification standard, the article will find the CJEU’s approach as being ineffective and inconsistent from the perspective of protection of equality, pluralism, tolerance and human dignity. It will be proposed that the CJEU should have applied a more nuanced proportionality test for indirect discrimination by assessing the legitimacy of the employer’s aim more delicately and by giving adequate weight to the importance of worker’s fundamental freedom of religion.
Keywords: The Court of Justice of the European Union, Achbita, Bougnaoui, EU Employment Equality Directive, Directive 78/2000/EC, religious discrimination, anti-discrimination, religious equality, headscarf case, Islamic headscarf, religious symbols at work, neutrality, religious freedom, freedom religion and
JEL Classification: K10, K31, K36
Suggested Citation: Suggested Citation