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Dismissing an employee for wearing a headscarf on ‘brand image’ grounds may be discrimination: a new ruling from France

Written by
Capstan Avocats, the law firm setting the benchmark for labour law in France.
Authors
Anne-Laure Périès
Partner - France
Capstan Avocats
France
26.04.21
3
An employee who was dismissed for refusing to remove her headscarf which her employer claimed was problematic for its brand image was a victim of discrimination, according to a recent ruling from the French Court of Cassation.
Background

On her return from parental leave, a saleswoman employed by a clothing retailer came to work wearing a headscarf that concealed her hair, ears and neck. The employer asked her to remove it and, following her refusal, dismissed her for real and serious reasons, citing damage to the company’s brand image and commercial policy, based on the presumed expectations of its customers. 

Believing that she was the victim of discrimination on the grounds of her religious beliefs, the employee appealed to the labour court and her dismissal was annulled by the Court of Appeal. The Court of Cassation has just confirmed this decision (Cass. soc., 14 April 2021, No. 19-24.079), in line with EuropeaCourt of Justice case law, in particular the rulings of 14 March 2017 (C-157/15, ‘G4S’ and C-188/15 ‘Micropole’) and its own case law, in particular the ruling of 22 November 2017 (No. 13-19.855 FS-PBRI). 

In the absence of a neutrality requirement, dismissal for wearing a headscarf is discriminatory

Since the Micropole judgment and the adoption of Article L. 1321-2-1 into the Labour Code (resulting from Law No. 2016-1088 of 8 August 2016,) employers can insert a neutrality clause into internal regulations (or in a memorandum subject to the same regime) prohibiting the visible wearing of any political, philosophical or religious sign in the workplace.  

However, clause will only be valid if it: 

  • applies in a general and undifferentiated manner (to any sign and to all religions); 
  • is justified by the exercise of other fundamental rights and freedoms or by the needs of the smooth running of the company; 
  •  is proportionate to the aim sought (for example, it only applies to employees in contact with customers). 

 

There was no such clause in the case at hand. 

Prohibiting discrimination does not prevent differences in treatment

In this case, in order to rule out the accusation of discrimination linked to a visible sign of a religious belief, the employer had claimed there was a necessary and decisive professional requirement linked to the company’s brand image: it sold women’s clothing. 

What constitutes a necessary and decisive professional requirement is defined objectively in the Labour Code. It must: 

  • pursue a legitimate aim; 
  • be proportionate; 
  • be dictated by the nature or conditions of the professional activity. 

 

This professional requirement is assessed all the more strictly because, while the State, its employees and private companies managing a public service must not visibly manifest any religious beliefs, this restriction does not apply to private companies. In addition, the general principle of non-discrimination on the basis of religious convictions appears in all the founding texts of the French Republic as well as in its international commitments (Constitution of 4 October 1958, Universal Declaration of Human Rights of 10 December 1948, Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950, Charter of Fundamental Rights of the European Union of 7 December 2000). 

The company’s image is not an acceptable justification for a difference in treatment

In this case, the employer relied on the what it supposed to be the expectations of its customers. However, wishes expressed by customers have already been rejected as grounds for dismissal by the European Court of Justice in the Micropole case, on the basis that these are subjective considerations and not objective professional requirements justifying a restriction on the expression of employees’ religious beliefs. 

If health and safety requirements can be considered a necessary and decisive professional requirement, the employer must show that there is a potential risk of harm to the safety of employees or customers. Wearing a provocative beard has previously been held not to be in itself sufficient to show this (Cass. soc. 8 July 2020, n°18-23.743, FS-PBRI). 

Another potential justification could be that there would be an objective disruption to the company but, here again, only factual objective circumstances will be sufficient to show this. This type of ‘disruption’ might result from, for example, persistent proselytising or pressure exerted on employees or customers, seriously harming the smooth running of the company or infringe fundamental freedoms.