Ban on Wearing Necklace with Cross; Forbidden Discrimination on Grounds of Religion?
Court of Appeal of Amsterdam, 15 June 2010, JAR
2010/179
A tram conductor of the Amsterdam Public Transport Company GVB
was wearing a gold-colored necklace with a big cross in connection
with his Christian faith. The staff of GVB wears uniforms, and
dress instructions provide that, among other things, jewelry may
not be worn visibly on top of the uniforms. Despite GVB's request
to the tram conductor to follow these rules, he refused to do so.
The tram conductor took the position that he should be allowed to
wear the necklace with the cross on top of his clothes because of
his religion.
As the parties were unable to reach a solution, the employee
applied to the Subdistrict Court and claimed that GVB was guilty of
unjustified discrimination on grounds of religion. The Subdistrict
Court denied the employee's claim and observed that the freedom
of religion was not at issue, since GVB had not forbidden him to
wear the necklace with the cross, but only to wear it visibly. In
the opinion of the Subdistrict Court, the ban on wearing the
necklace with the cross on top of his clothes did not constitute
direct or indirect discrimination on grounds of religion,
especially since it is a general ban on wearing necklaces on top of
clothing, which also does not preclude other forms of religious
expression.
Appeal
The employee disagreed with the opinion of the Subdistrict Court
and appealed to the Court of Appeal of Amsterdam. In its judgment,
the Court of Appeal considered that the instruction of GVB to stop
wearing the necklace with cross visibly has a greater effect on
members of the Christian religious community than on others. With
this instruction GVB had thus discriminated indirectly. Indirect
discrimination is discrimination on the basis of other than
directly discriminating grounds, which does have an indirect
discriminatory effect. Indirect discrimination is in principle
forbidden, unless it is objectively justified by a legitimate aim
and the means of achieving that aim are appropriate and
necessary.
The Court of Appeal has ruled that these requirements have been
fulfilled in the present case. According to the Court of Appeal,
achieving the professional image desired by GVB is a legitimate
aim. It is sufficiently plausible that this aim meets a real need
of GVB, and the Court of Appeal also considered this aim of GVB to
be sufficiently important. In the opinion of the Court of Appeal,
the means is also fit for the purpose of achieving the intended
aim; the instruction to wear necklaces under the uniform ensures
that the uniform remains free of personal elements of the person
who is wearing it. Finally, the Court of Appeal examined whether
the means was also necessary, and concluded that clothing or
jewelry worn on top of the uniform is detrimental to the
businesslike and uniform image, making it impossible to achieve the
aim at issue by another means. The Court of Appeal further
considered the means not to be disproportionate. All in all, the
Court of Appeal held that the dress instruction at GVB serves a
legitimate aim and is appropriate and necessary, so that the ban on
indirect discrimination is not applicable in this case.
Finally, the employee still argued that GVB had acted contrary
to 'good employment practices' by failing to grant him an exception
to the instruction. In summary, the Court of Appeal held that GVB
had done enough to soften the consequences for the employee as much
as possible, for example by suggesting alternatives and providing
psychological coaching. Therefore the Court of Appeal concluded
that GVB had not adopted an unreasonable attitude vis-à-vis the
employee and did not have to grant the employee an exceptional
position.
Tips:
- As an employer, when drafting dress instructions you should
be cautious not to restrict employees unnecessarily in
expressing their religious convictions. The above ruling is
another example of the fact that instructions resulting in
indirect discrimination are only permitted if objectively
justified by a legitimate aim and if the means of achieving
that aim are appropriate and necessary.
- As an employer, try to think along with your employees as
much as you can. Employees will often feel that a complete ban
on wearing certain clothing and/or jewelry is unfair. Perhaps
alternatives can be found that are acceptable to both parties,
for example a headscarf in the company house style.