Frequently Asked Questions about headscarf at the workplace
Over the last few years, increasingly there have been debates and court decisions on the visible wearing of religious symbols at the workplace. In Germany and at a European level, the focus was often on headscarves worn by Muslim women.
Muslim women who wear headscarves in their working life, in particular, experience above-average discrimination in Germany. Various studies as well as the Federal Anti-Discrimination Agency’s advisory work demonstrate: Time and again, women are asked to remove their headscarf by their employers, and many are not even invited along to an interview.
Often such discrimination is justified with the desire to appear neutral or to comply with their customers’ wishes. However, a ban on headscarves and other religious symbols in working life requires a good reason, since it encroaches upon the fundamental rights of those concerned.
Legally, the core question revolves around weighing up which rights supersede others in case of doubt: The fundamental right of religious freedom and the prohibition of discrimination or the right and, where relevant, obligation of employers to publicly project a neutral stance on religion.
No. In principle, everyone in Germany is allowed to freely live out their own religion – including at the workplace. This can already be derived from the fundamental right of religious freedom (Article 4 of the Basic Law). Furthermore, the General Equal Treatment Act (German abbreviation: AGG) prohibits discrimination on the basis of religion or belief in working life. This means that both in the application process and the everyday work itself, employers may not disadvantage individual persons on account of their faith or hinder them from exercising their religion.
However, there are exceptions and regulations that can justify an employer’s prohibition of religious symbols at the workplace. For instance, wearing a headscarf or necklace at work can be dangerous when working with machinery. Prohibition on the grounds of so-called “objective reasons” can therefore be legitimate. Further exceptions exist depending on whether the employer works in the private, public or faith-based sector.
In principle, it is illegitimate to exclusively prohibit religious symbols at the workplace. However, the European Court of Justice clarified in a 2017 judgment that employers have the right to project a neutral image in public. Accordingly, they may also demand from their employees that these project a neutral image (judgment of 14 March 2017, C-157/15).
However, employers may only assert this demand for neutrality for activities that in a broader sense are representative of the company. In particular, the demand for neutrality must apply in equal part to political or philosophical beliefs and cannot solely concern religion.
Additionally, corporate neutrality requires a clear workplace regulation that applies to the company as a whole and is exercised consistently in everyday work. Neutrality regulations that indirectly only affect individual religions or were only introduced to forbid individual employees from wearing religious symbols are impermissible.
Here the effectiveness of a ban on headscarves always depends on the individual circumstances of the case and is therefore frequently a subject of court debate. It was only in January 2019 that the Federal Labour Court, in the form of a request for a preliminary ruling, referred several questions on the effectiveness of a corporate ban on headscarves to the European Court of Justice (order for reference of 30 January 2019, case number: 10 AZR 299/18 (A)). It remains to be seen how the European Court of Justice will position itself.
In addition, neutrality regulations may not lead to disadvantages in the application procedure. An application may not be rejected solely on the basis that the applicant wears a headscarf on their application photo or during a job interview, for example. If a neutrality regulation applies, employers may only take further action if applicants or employees are not willing to refrain from visibly expressing their religious affiliation at the workplace.
As opposed to private companies, the State does not have the freedom, but rather an obligation, to project a neutral image. The principle of neutrality is laid down in Basic Law and in this case opposes the right to religious freedom. In Germany, it must therefore be determined on a case-by-case basis in which regulatory domains a ban on religious symbols is legitimate and/or required.
Although, in principle, civil servants must all behave neutrally with regard to religion, politics and ideology, a general ban of religious symbols for all employees in the public sector cannot be derived from the principle of neutrality. If public sector workers are to be forbidden from wearing religious symbols at work, to protect the religious freedom enshrined in the Basic Law specific laws need to be enacted at national and individual Federal Land level that justify a ban on religious symbols in the public sector.
In addition, a work situation must exist wherein the preservation of State neutrality outweighs that of religious freedom. In this context, one of the central questions is whether visible religious symbols could harm citizens’ trust in the State. With the State’s most important or sovereign functions, e.g. with the police or judiciary, there is therefore a very high demand for neutrality.
In one case in Hesse, the Higher Administrative Court of Kassel rejected the complaint by a Muslim law clerk after being prohibited from wearing a headscarf during specific activities of her clerkship (decision of 23 May 2017, case number: 1 B 1056/17). This prohibition was deemed justified, if she were to take on judicial or prosecuting responsibilities and were thereby perceived to represent the judiciary. Here the Court determined that the law clerk’s right to religious freedom must come second to the State’s neutrality, particularly since the applicable provision in the Hesse public service code was seen as providing sufficient legal basis. In addition, the Court declared the consequences to the clerk’s education reasonable, since the ban only concerned a small element of her training. A constitutional appeal lodged by the clerk against the Court’s decision was rejected by the Federal Constitutional Court, emphasising the State’s principle of neutrality (decision of 14 January 2020, case number: 2 BvR 1333/17).
On the other hand, in a similar case the Administrative Court of Augsburg decided in favour of a law clerk who had filed a suit because she, too, had not been permitted to carry out specific activities during her clerkship (judgment of 20 June 2016, case number: 2 Au K 15.457). However, according to the Bavarian court, in this case the required legal basis was absent, so the prohibition was ruled inadmissible. The judgment has meanwhile been overturned on procedural grounds; a decision by the Federal Administrative Court on the appeal still remains pending. In the meantime, the Bavarian state parliament has passed a new law for judges and prosecutors that prohibits clothing characterised by religion or ideology in the courtroom.
Over the last few years, the debate in Germany most often concerned wearing religious symbols when teaching at schools, above all by Muslim women who wear a headscarf. In some Federal Länder, laws have been passed that forbid teaching staff from wearing religious symbols. The reason most often cited by these regulations is that religious clothing could endanger the State’s neutrality toward pupils and parents as well as the religious peace at school. In addition, some Federal Länder have enshrined into their legislation a privileged treatment of Christian and Western values.
In one judgment in 2015, the Federal Constitutional Court explicitly stated: Blanket bans, which categorically prohibit the wearing of religious symbols in the classroom, are not compatible with Basic Law (judgment of 27 January 2015, case numbers 1 BvR 471/10 and 1 BvR 1181/10). Within the State's educational mandate, teachers’ religious freedom therefore initially takes precedence over the demand for neutrality.
A ban is only justified in very specific cases, when there have previously been religious conflicts within the school or the educational district, so that there are actual grounds for an endangerment to State neutrality or the school peace. In addition, such bans must be limited in terms of duration and may not privilege individual religions.
In one case, where an applicant successfully sued for damages for an offence against the General Act on Equal Treatment, also the Federal Labour Court confirmed that Muslim teachers could not be rejected by generally citing an abstract endangerment of school peace and State neutrality (judgment of 27 August 2020, case number: 8 AZR 62/19).
That notwithstanding, some Federal Länder have not amended their legislation. In Berlin, Bremen and Hesse, their respective neutrality laws thus far remain effective. Furthermore, in Bavaria, Baden-Wuerttemberg, Hesse and Saarland the privileging of Christian and Western values remains.
Pursuant to section 9 of the General Equal Treatment Act, religious communities that run a hospital or school, for instance, in an employer capacity enjoy special rights. However, the European Court of Justice (in German:Europäischer Gerichtshof) has significantly restricted Church employers’ right of self-determination with two of its policy decisions. According to the European Court of Justice’s judgment in early 2018, these may no longer sweepingly require from their employees a specific religious affiliation. If one is indeed demanded, then such a requirement must also stand up in court. This depends, based on the merits of each case, whether a particular professional activity is intrinsic to exercising one’s religion or beliefs.
In September 2018, the European Court of Justice made a ruling in the so-called Chefarzturteil (head doctor judgment) that loyalty to the Church's ethos (section 9 (2) of the General Equal Treatment Act) cannot be required across the board for any activities. Rather, it must be substantiated in each case for the particular activity subject to judicial review (judgment of 11 September 2018, C-68/17). This judgment pertains to the lawsuit of a head doctor who was dismissed from a catholic hospital, because, after divorcing his first wife, with whom he had been married according to Catholic rite, he remarried in a civil ceremony without their first marriage being annulled.
Employers can have important reasons for actively concerning themselves with religious diversity in their own company. On the one hand, an open and respectful approach to religious diversity improves the working atmosphere, enhances one’s appeal as an employer and can therefore be profitable for the company. On the other, this can avoid potential conflict and reduce the risk of discrimination.
Potential ways for employers to promote a sensitive engagement with religious diversity and examples of good practice can be found in the Federal Anti-Discrimination Agency’s guidelines.
“Religious diversity at the workplace. Principles and practical examples” (only available in German).