December 06, 2010
This guest post has been written by Katayoun Alidadi who is a PhD Candidate at the KULeuven (Institute for Migration Law & Legal Anthropology) and a project researcher in the European FP7 Project Religare on ‘Religious Diversity and Secular Models in Europe’ (www.religareproject.eu)
Recently, a Belgian judge in the small Walloon city of Huy (between Namur and Liège) found the total ban on all headgear for restaurant clientele to be discriminatory towards a number of protected categories of individuals. The restaurant had posted a sign at the entrance of the restaurant annex bowling alley stating that ‘as a matter of courtesy towards our clientele all headgear is prohibited in our establishment. We reserve the right to refuse entry.’ The court ordered the sign to be removed.
The plaintiff in this case was a woman wearing a headscarf. However, she was not a Muslim woman, but a recovering cancer patient who had lost all her hair through chemotherapy and thus wore a headscarf for reasons related to her health. The woman, together with her family, went to the restaurant for a bite to eat but was swiftly confronted with the restaurant’s policy on headgear. The waitress bringing the menus asked her to remove her headscarf and when she replied ‘she had no choice as she had lost all her hair though her sickness and treatment,’ she was met with indifference: the policy had to be enforced in all circumstances.
The family left the restaurant in disbelief, but filed a complaint with the Belgian Centre for Equal Opportunity and Opposition to Racism (the Belgian Equality body) which took her compelling case to court.
Under the Belgian nondiscrimination law of 10 May 2007, which covers offering goods and services to the public, discrimination on the basis of ‘current or future health conditions’ is prohibited (in addition to discrimination on the basis of disability, and a physical or genetic condition). In conformity with EU equality law, both direct and indirect discrimination are covered (as is harassment).
This case concerned an indirect discriminatory policy, one that appears neutral on its face but which has a negative impact on one or more protected categories in comparison with other individuals.
The negative impact of the restaurant headgear ban on individuals such as the plaintiff who for reasons related to their health wear a headscarf (or a cap) was clear, but the same could be said for individuals who for religious reasons wear a headscarf or other headgear (e.g. a kippa). It is interesting to observe that the court, in agreeing with the argumentation developed by the plaintiff with regard to indirect discrimination on the basis of health conditions, also explicitly mentions the case of Muslim women who for religious reasons wear a headscarf (and there is a debate whether they would be admitted to the restaurant), even though the observation does not seem strictly necessary in this case and anything to do with Islam can be considered controversial.
To make the assessment complete, once indirect discrimination was established, the judge also looked into possible justifications. It held that a general and ‘preemptive’ ban on headgear was not proportionate to the goal of courtesy and hygiene that the restaurant wanted to achieve. Those goals could be (better) achieved by addressing the clientele in person were a problem to arise. Also importantly, the presence of the sign in itself scared off certain customers who did not want to deal with the problem in a leisurely setting, so that the restaurant was de facto excluding certain groups.
The restaurant owner is appealing the judgment and meanwhile has kept the sign but altered the formulation in the sense that now ‘headgear is not appreciated in the restaurant,’ which no doubt also scares away certain customers.
The Belgian judgment (Court of First Instance of Huy, 26 May 2010, nr. 09/928/B) is unpublished but you can find it under my piece discussing the judgment in Dutch for the Juristenkrant, nr. 217 of 10 November 2010.
In light of the European Court’s ‘margin of appreciation’ doctrine, which in the religious freedom area is still considerably wide considering the lack of consensus amongst member states, national decisions such as these (that address indirect discrimination of protected categories including on the basis of religious practice) are important to monitor. Also, although the European Court of Justice has played a more prominent role in developing the concept of indirect discrimination, the idea that applying the same policy or rule to all individuals can amount to unjustified discrimination, is not alien to the European Court of Human Rights. Think of Thlimmenos v. Greece (violation of article 14 (nondiscrimination) in conjunction with article 9 (freedom of religion) where a Jehovah’s Witness was refused appointment as a chartered accountant on account of his criminal conviction for refusing military service on the basis of his religious beliefs. According to the European Court, ‘[t]he right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different’ (§ 44).