Islamic headscarves and the CJEU

Abstract

This article contains an analysis of the recent CJEU cases on the wearing of Islamic headscarves at work. It is argued that the CJEU had four main options in answering the questions referred by the national courts in these cases: it could have found that the employer’s rules in these cases constituted direct discrimination; it could have held that there was no direct discrimination but that there might be indirect discrimination, but that a very strict justification test should be applied; it could have concluded that there might be indirect discrimination and that a very lenient justification test should be applied; or, it could have found that the wish of customers not to have services provided by an employee wearing a headscarf is a genuine and determining occupational requirement. The CJEU appears to have chosen the third option, and in doing so, has missed the opportunity to take a strong lead in providing protection against religion or belief discrimination and against discrimination of minorities.