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Employers' Hijab Ban Isn't 'Direct Discrimination,' European Court Says

When she was hired in 2003, a receptionist didn’t wear a hijab to work. Her attempts to wear one three years later resulted in her being fired.

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A Muslim woman who was fired over her wish to wear an Islamic headscarf at her job in Belgium did not suffer from direct discrimination, according to the highest court in the European Union. Because her employer had a general rule against religious or political displays, the court says, the woman wasn’t treated differently than other workers.

The decision by the European Court of Justice is among the most high-profile developments in a string of public and legal debates in Europe over the hijab — debates that have played out against a backdrop of rising nationalism and anti-Muslim sentiment.

The dispute at the heart of today’s ruling began more than 10 years ago, when receptionist Samira Achbita was told not to wear a hijab by her employer, security company G4S. That company and others have argued that they should be able to accommodate their customers and clients who don’t want to deal with an employee who wears a headscarf.

When she was hired in 2003, Achbita did not wear a hijab to work. But when she told her bosses three years later that she wanted to begin wearing one, they refused to allow it, citing an unwritten rule meant to present neutrality to the firm’s clients.

Two months after the dispute began, G4S’s unwritten rule became a company policy that stated, “employees are prohibited, in the workplace, from wearing any visible signs of their political, philosophical or religious beliefs and/or from engaging in any observance of such beliefs.”

The official rule was approved on May 29, 2006; one day before it went into effect on June 13, Achbita was fired.

Achbita challenged her firing in court, saying she had been discriminated against based on her religion — and the case began winding its way toward the EU’s highest court.

In its ruling, the court found that the company’s rule “refers to the wearing of visible signs of political, philosophical or religious beliefs and therefore covers any manifestation of such beliefs without distinction.”

Saying that there’s no sign the rule was applied differently to Achbita than any other employee, the court stated, “Accordingly, such an internal rule does not introduce a difference of treatment that is directly based on religion or belief.”

In its findings, the court noted that “it is not, however, inconceivable” for a Belgian court to conclude Achbita was the victim of indirect discrimination. The key, the court wrote, would be if a company rule “introduces a difference of treatment” that results “in persons adhering to a particular religion or belief being put at a particular disadvantage.”

“However, such indirect discrimination may be objectively justified by a legitimate aim,” the high court said, such as an employer’s desire for neutrality that prompts a ban on political, philosophical and religious symbols.

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