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Headscarves in the Workplace: A Comparison Between the United States and Europe on Workplace Accommodations for Religious Practices

By: Stephen Haas

On March 14, 2017, the European Court of Justice decided that European Union rules that prohibit discrimination do not prevent workplaces from disallowing the wearing of garments for religious purposes.[1]

The case was prompted when a security company in Belgium called G4S fired receptionist Samira Achbita based on a company ruled that prohibited employees from wearing “visible signs of their political, philosophical or religious beliefs in the workplace.”

The European Union “principle of equal treatment” requires that there be “no direct or indirect discrimination… on the grounds of religion.”

The European Court of Justice first explained an important distinction between direct discrimination and indirect discrimination. Under the principle of equal treatment, direct discrimination is inherently unlawful, while indirect discrimination is justified if it is the result of a “legitimate aim” and “if the means of achieving that aim were appropriate and necessary.”

Direct discrimination, the court stated, occurs when members of different religions are treated differently. This was not shown in the case of Ms. Achbita. The court ruled:

It is not evident from the material in the file available to the Court that that internal rule was applied differently to Ms Achbita as compared to other G4S employees. Accordingly, such an internal rule does not introduce a difference of treatment that is directly based on religion or belief.

Indirect discrimination, on the other hand, may be found if an “internal rule introduces a difference of treatment that is indirectly based on religion or belief.” Indirect discrimination is justified and legal, under the EU law, if it is the result of a “legitimate aim” and if the means of achieving that aim were “appropriate and necessary.”

In Ms. Achbita’s case, the Court said that the “ban on the visible wearing of signs of political, philosophical or religious beliefs is appropriate for the purpose of ensuring that a policy of neutrality is properly applied, provided that that policy is genuinely pursued in a consistent and systematic manner.”

Therefore, if it is applied consistently, there is nothing illegal about a workplace regulation that indirectly has the effect of preventing people from observing the dictates of their religion.

Let’s now move to the United States to determine whether a similar case would play out in the same manner in an American court.

Title VII of the Civil Rights Act of 1964 prohibits employers with 15 or more employers from discriminating in employment based on race, color, religion, sex and national origin.

In addition to prohibiting employers from treating applicants differently based on their religious beliefs and practices and from subjecting employees to harassment based on their religious beliefs and practices, the Act also prohibits the employer from “denying a requested reasonable accommodation of an applicant’s or employee’s sincerely held religious beliefs or practices” if the accommodation would not impose more than a de minimis cost, or, in plain English, a significant cost.[2]

So, there are two elements to any inquiry regarding a sought religious practices accommodation in the workplace:

1. We need to determine what kind of accommodation is necessary to allow the employee to comply with his or her religion; and

2. Whether the required accommodation imposes more than a de minimis cost on the employer.

In Ms. Achbita’s example, the accommodation necessary is simple. If a person’s religion requires her to wear a headscarf, the accommodation would be to allow her to wear a headscarf. So, the question is whether making an exception to a general workplace dress code for an employee imposes a significant cost on the employer.

According to the Equal Employment Opportunity Commission, factors to be considered include:

                  - type of workplace

                  - the nature of the employee’s duties

               - the identifiable cost of the accommodation in relation to the size and operating costs of the                employer

                     - the number of employees who will in fact need a particular accommodation.[3]

There is plenty of case law on religious accommodations dating back to the 1970s as the early cases of Trans World Airlines Inc. v. Hardison[4] and Ansonia Board of Education v. Philbrook[5] allowed the Supreme Court to lay out the guidelines for religious discrimination cases.

To more directly focus on the issue at hand, we can look to a more recent case, Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores[6]. Samatha Elauf, a Muslim-American woman, had applied for a job at an Abercrombie & Fitch store in Oklahoma. She wore a religious headscarf to her interview, though she never actually mentioned that she would need to wear the headscarf on the job for religious reasons. The interviewer assumed that Ms. Elauf would want to wear a headscarf on the job, in contravention of Abercrombie & Fitch’s employee dress code, and therefore declined to hire her.

While Ms. Elauf won at trial, the Tenth Circuit Court of Appeals ruled in factor of Abercrombie & Fitch. On appeal, however, the US Supreme Court reversed and held that Ms. Elauf (And the EEOC who had sued on her behalf) could maintain a cause of action. The Court ruled that an “employer may not make an applicant's religious practice… a factor in employment decisions.”[7] Because The Civil Rights Act protects “religious practices,” it requires even otherwise-neutral policies (such as a ban on any type of headwear) “to give way to the need for an accommodation.”[8]

The case was remanded back to the district court for a new trial. Because the presumption would be in favor of requiring the accommodation, the burden would be on Abercrombie & Fitch to show that it would suffer an undue burden if it allowed Ms. Elauf to wear a headscarf. The mere fact that the headscarf was against the company’s general dress code was insufficient. Faced with this daunting challenge, Abercrombie & Fitch settled the case and paid almost $50,000 in damages and court costs.[9]

The Abercrombie & Fitch case is at odds with the European Court of Justice decision in Achbita. The ECJ allowed a workplace policy that indirectly affected a religious practice as long as the policy is “genuinely pursued in a consistent and systematic manner.” The US Supreme Court, on the other hand, held that the Civil Rights Act of required that an employer affirmatively make accommodations for a potential employee’s religious practices even if they interfere with a consistently applied company policy. To avoid having to make an accommodation, the employer would need to prove that the accommodation would have a significant cost to the employer. Therefore, at least in this context, American law is more protective of religious practices than does the law applied in the European Union.

[2] 29 CFR 1605.2

[4] 432 U.S. 63 (1977)

[5] 49 U.S. 60 (1986)

[6] 135 S. Ct. 2028 (2015)

[7] Id. at 2033

[8] Id. at 2034