Germany: German Federal Labour Court Opposes General Ban on Headscarves

A general ban on headscarves for aviation security assistants is inadmissible even in the security-sensitive airport area and on the grounds of a supposed requirement for neutrality. Employers bear the burden of proof in such cases that no discrimination took place and risk compensation claims.

The German General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz – AGG) prohibits discrimination in Germany on grounds such as religion. If an applicant is not considered for a position for such a reason, they may be entitled to damages and compensation.

The burden of proof is particularly relevant for employers in this context: if the person concerned presents evidence suggesting discrimination, the burden of proof is reversed in accordance with Section 22 of the German General Equal Treatment Act. The employer must then prove that there was no violation of the prohibition of discrimination. This reversal of the burden of proof is often decisive in practice when it comes to compensation claims.

 

Background

The present case was based on the job application of a Muslim woman who had applied for a job at a private security company at Hamburg Airport. In her application photo, she wore a headscarf that completely covered her hair but left her face uncovered. Shortly afterwards, she received a rejection letter – initially without any explanation. When she inquired by telephone, she was told vaguely that there was a gap in her resume and that they would investigate it and get back to her. No response was forthcoming.

The woman was convinced that the rejection was due to her headscarf and not her resume. She filed a lawsuit and demanded compensation under Section 15 para. 2 of the German General Equal Treatment Act for discrimination based on religion.

 

Key Issues

The Federal Labour Court saw sufficient evidence of discrimination on the grounds of religion. According to the provision on the burden of proof in Section 22 of the German General Equal Treatment Act, it was sufficient for the plaintiff to present facts that give rise to a presumption of discrimination. In the present case, the application photo in conjunction with the company’s internal policy against wearing religious head coverings supported this presumption. The company was unable to refute the presumption, as is often the case in practice. Hence, compensation in the amount of EUR 3,500.00 gross (one monthly salary of the job the plaintiff had applied for) was awarded to the plaintiff.

The discussion of the so-called neutrality requirement in the ruling deserves special attention. The defendant company argued that it acted as an “extension” of the federal police and was therefore subject to special state neutrality requirements. The Federal Labour Court did not follow this argumentation. Neither every activity on behalf of the state nor every proximity to sovereign tasks automatically justifies a ban on visible religious symbols. There was therefore no viable legal basis for a headscarf ban in the concrete case.

According to Section 8 of the German General Equal Treatment Act, different treatment is only permissible if a specific characteristic constitutes an essential and decisive professional requirement. However, the job of an aviation security assistant – baggage checks, document checks, communication with passengers – can be performed properly with or without a headscarf. Abstract fears of possible conflicts or tensions were not sufficient to justify an interference with the freedom of religion protected by Article 4 of the German Constitution (Grundgesetz – GG). The plaintiff was therefore awarded compensation.

Practical Points

• A general ban on headscarves is generally inadmissible. Without a specific legal basis or demonstrable risk, they are open to being challenged under discrimination law. Employers should therefore carefully review existing dress codes, compliance guidelines, and works agreements. General bans on religious symbols carry considerable risks of discrimination.
• “Neutrality” does not justify general bans. There must be objective, verifiable reasons why religious symbols should be prohibited in a specific job and situation.
• Circumstantial evidence of discrimination is sufficient – the burden of proof then lies with the employer. For example, an application photo with a headscarf, a subsequent rejection without providing a reason, and internal regulations that effectively exclude the wearing of headscarves can constitute circumstantial evidence under Section 22 of the German General Equal Treatment Act. To refute the resulting presumption of discrimination, the employer must show that no discrimination took place and existing restrictions have a clear legal basis or are based on specific, verifiable operational requirements. Documentation, transparent decision-making processes, and careful justification of selection decisions in the application process are essential to avoid compensation claims and potential damage to the company reputation.
• Compensation in the amount of one gross monthly salary for a rejected applicant is within the usual range for discrimination cases of this kind, but it can reach up to three monthly salaries (plus any actual causal damages incurred by the employee).