European Court Backs Woman Dismissed in France for Wearing Head Scarf

http://www.nytimes.com/2016/07/14/world/europe/france-head-scarf-court.html

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LONDON — A French company that dismissed a Muslim woman for wearing a head scarf when dealing with clients unlawfully discriminated against her, according to an advisory opinion that the European Union’s highest court released on Wednesday.

The opinion — while not the final word in the case — was the latest intervention in a debate in Europe over the role of Islam in public life and the challenge of integrating foreigners, an issue that has gained resonance in recent years with the large influx of refugees and asylum seekers, many of them from Muslim countries. The question of religion in the public sphere is particularly fraught in France, which has a strong tradition of secularism.

In the advisory opinion, Eleanor Sharpston, an advocate general with the European Court of Justice, sided with the Muslim woman, Asma Bougnaoui, who lost her job with Micropole, a French information technology consultancy, in 2009 after she refused to abide by the company’s request that she remove her head scarf when meeting with clients. She took her case to a French court, which referred it to the Luxembourg-based European Court of Justice.

Ms. Sharpston found that Ms. Bougnaoui’s dismissal amounted to “direct discrimination” on the basis of religion or belief. She said that there was “nothing to suggest that Ms. Bougnaoui was unable to perform her duties as a design engineer because she wore an Islamic head scarf,” and she noted that the company had affirmed “her professional competence.”

She indicated, however, that she would not have had the same view if Ms. Bougnaoui had covered her face completely, given that “Western society regards visual or eye contact” as being fundamentally important in face-to-face communications between representatives of a company and its customers.

Micropole did not immediately respond to a request for comment on Wednesday.

The opinion is not the final word on the matter; a formal judgment is expected in the coming months. But advisory opinions are usually a reliable guide to the thinking of the court, which interprets European law for the 28-nation union.

In an advisory opinion issued in May, in a separate case, Juliane Kokott, another advocate general with the court, said that a company could bar a Muslim female employee from wearing a head scarf at work provided the policy applied to all religious attire and did not single out Islam. That opinion came after a Muslim woman in Belgium, Samira Achbita, was dismissed from her job as a receptionist at a security company.

Legal experts said that the two advisory opinions appeared somewhat contradictory and that the court as a whole would need to balance freedom of religion with the rights of companies to have policies requiring religious or ideological neutrality. At the same time, they said, the court would consider the national identity and traditions of the country where each case arose.

Nicola Countouris, a professor of European law and labor law at University College London, said he expected the court to examine jurisprudence at the European Court of Human Rights in Strasbourg, France, where, he noted, the right to freedom of religion had prevailed in a landmark case in which a British Airways flight attendant had been asked not to wear a white-gold crucifix with her uniform.

“The European Court of Justice has a hot potato on its hands,” Mr. Countouris said.

“My money is that the Sharpston view will win out,” he added, “but it may upset the French authorities.”

In France, public servants are barred from wearing garments or conspicuous insignia that display religious beliefs, such as a head scarf or a skullcap. The rules do not apply to workers in the private sector, where companies have more discretion over dressing norms. In 2010, the French Parliament voted to ban the wearing of clothing that conceals the face in public places, becoming the first European country to restrict a custom that some Muslims consider a religious obligation.

In 2014, the European Court of Human Rights upheld that ban as a legitimate attempt to preserve the norms of France’s diverse society.