France: The Islamic Veil cannot be Banned without a Neutrality Clause, even for Commercial Reasons
In 2017, the French Supreme Court recognised the possibility, expressed in Article L. 1321- 2-1 of the Labour Code, to include in a company handbook, a general clause that allows the employer to prohibit workers from wearing any religious, political or philosophical insignia when they are in contact with customers and clients. If this restriction is not included in the internal regulations, it is only possible if there is an “essential and determining professional requirement” within the meaning of Directive 2000/78/EC of 27 November 2000.
In a recent judgment of 14 April 2021, the Court of Cassation reiterated these instructions and confirmed that the existence of an essential and determining professional requirement cannot be justified by the damage to the company’s image, defended by the employer.
Thus, in the absence of a valid neutrality clause in the internal regulations, the dismissal of an employee on the grounds of her refusal to remove her Islamic headscarf when she is in contact with customers is discriminatory and therefore, null and void.
In support of its appeal, the employer then sought to demonstrate the existence of an “essential and determining professional requirement” by basing its reasoning on:
- the “nature of the employee’s job as a salesperson, as this job involved direct contact with customers“;
- the company’s “brand image” and “its choice of commercial positioning, intended to express the femininity of its customers without concealing their body and hair”;
- the “spontaneous, ostentatious and permanent nature of the methods of expressing [her] religious convictions chosen” by the employee, given the “length of time [she] had herself performed her duties without wearing a headscarf“.
The employer also argued for the existence of a policy of neutrality, even though this was not formally derived from a clause in the internal regulations.
None of these arguments were accepted by the Supreme Court, which confirmed the nullity of the dismissal based on discriminatory grounds.
The 14 April ruling thus recalls that “the employer, invested with the mission of ensuring that all the fundamental rights and freedoms of each employee are respected within the work community, may include in the company’s internal regulations or in a memorandum subject to the same provisions as the internal regulations, a neutrality clause prohibiting the visible wearing of any political, philosophical or religious sign in the workplace, provided that this general and undifferentiated clause is only applied to employees who are in contact with customers“.
Referring to the Micropole case law of the CJEU, the judgment evokes the concept of an essential and determining professional requirement: it “refers to a requirement objectively dictated by the nature or conditions of the professional activity in question. It cannot, however, cover subjective considerations, such as the employer’s wish to take account of the particular preferences of the client” (CJEU, 14 March 2017, Case C-188/15).
Thus, the Court draws the conclusion that “the alleged expectations of customers as to the physical appearance of sales assistants in a clothing retail business cannot constitute an essential and determining occupational requirement“. The employer’s justification, which was explicitly based on the company’s image in terms of the “damage to its commercial policy” was therefore not admissible.