Workplace dress codes: on headscarves, skullcaps and crucifixes
In recent times much attention has been focused on the Islamic headscarf, Jewish skullcap and Christian crucifix. In our multicultural Western society, the wearing of these kinds of external symbols and body ornamentations regularly gives rise to heated debate. The same applies to piercings, trainers and mohawks. The workplace is not exempt from body ornamentations and other external symbols. As an employer, you may consider that a dress code would be beneficial. This raises the question of just how far you are permitted to go in imposing rules about dress. At what point do you run the risk of being accused of discrimination?
As an employer, you probably consider it important that your staff dress presentably. For example, if you employ hairdressers, bank clerks, shop staff, cashiers or hotel workers. There may also be hygiene and safety requirements that apply to your staff’s clothing, for example if you employ chefs or are in charge of nursing or teaching staff. In all such situations, you are at liberty to impose a dress code on employees. If these matters are of great importance to you, we would even recommend that you put together general guidelines governing such issues. Having guidelines is an indication that you treat everyone equally and will not take arbitrary action over isolated incidents. You may be wondering whether you can include a prohibition on headscarves, crucifixes and skullcaps.
1. Avoid discriminating against groups of people by category
On the basis of established case law at the present time, it must be concluded that the prohibition of these types of individual external symbols is almost impossible. This is due to the fact that such dress restrictions almost invariably lead to discrimination against or even exclusion of entire groups of people. Take, for example, the situation where employees claim entitlement to a different dress code due to their religious beliefs. Past cases have involved Muslim women who wish to wear headscarves when working behind the till in a shop or as a clerk at court and Sikhs working in hotels who wish to grow their hair long and wear a (blunt) ceremonial dagger under their clothing. There have also been cases concerning shelf stackers who came to work with a piercing and an assistant manager at McDonald’s who wanted to grow a beard. In most of these disputes, the religious beliefs of the employees concerned took precedence over the employer’s dress code.
The Dutch Constitution prohibits both direct and indirect discrimination on the grounds of religion. The Netherlands is not alone in this. Such discrimination is prohibited under many international and European treaties, such as the International Covenant on Civil and Political Rights and the European Convention on Human Rights. Compliance with these treaties by the signatory states is enforced by international courts, in particular the European Court of Human Rights in Strasbourg. The principle underlying the treaties is that persecution of and discrimination against groups of people, for example on grounds of religious or political beliefs, gender, sexual preference or race, as has occurred on a large scale in recent history in the Western world, must be prevented.
2. Give serious consideration to the restrictive interpretation applied by the Dutch Equal Treatment Commission
The prohibition on discrimination in the Dutch Constitution is reflected in Dutch legislation, in particular the Equal Treatment Act. This legislation describes in detail the various forms of prohibited discrimination. The task of supervising compliance with this legislation has been given to a specific body, the Equal Treatment Commission, which has its seat in The Hague. Any interested party may complain about discrimination to the Commission by submitting a notice of complaint. The Commission will then assess whether the complaint is justified. If the Equal Treatment Commission concludes that a complaint about prohibited discriminatory behaviour is justified, this establishes that the party against whom the complaint was made has acted unlawfully. This finding creates an obligation to pay compensation for the loss or injury suffered.
3. Ensure that you have objective justification
Prohibiting headscarves, crucifixes and skullcaps is only permitted if you are able to produce objective grounds to justify the prohibition. Examples of objective justification include being presentable, safety, hygiene and projecting a neutral image. However, you should exercise caution in assuming that such justification will be held to exist in your case. In such situations the obligation on you to provide reasons is an extremely onerous one. We summarise below some of the most illustrative cases.
A hairdresser entered employment at a hair salon at the age of 16. Six years later, she informed her employer that she wished to wear a headscarf at work in future due to her religious beliefs. The employer feared that customers would be put off by the headscarf. The employee was suspended. The Sub-District Court granted the hairdresser’s application to be allowed to return to work. The Court considered the relative importance of the employer’s interest in his employees having presentable hairstyles and the employee’s interest in being able to conform to the requirements of her faith. The Sub-District Court held that the fear that customers would be put off was not based on any concrete facts. For that reason, the employee’s interest in being able to wear her headscarf took precedence.
The management of a care home for elderly people with dementia in The Hague issued a memo prohibiting all staff from wearing any head covering “unless this is necessary for the purposes of carrying out a task due to health and safety requirements”. By way of explanation, the management stated that this dress requirement was based “on considerations with respect to care for the psychogeriatric elderly (with dementia), an extremely vulnerable group in society”. It was said that research in other countries had shown that elderly people with dementia “respond with more anxiety and agitation to staff wearing headgear than to staff without headgear”. It was also claimed that a headscarf was not appropriate within the culture in which elderly people with dementia had grown up.
The Equal Treatment Commission concluded that a complaint about this was justified. In introducing this dress requirement, the management of the care home was guilty of prohibited discrimination on grounds of religious belief. The objective justification put forward by the management, which was that the dress requirement was imposed in order to offer care to the psychogeriatric elderly (with dementia) on the basis of an age-related concept in which the management took into consideration the elderly people’s earlier lives, did not convince the Commission: “This applies all the more given that elderly people who were young during the 1920s to 1940s grew up in an environment in which headgear and headscarves were commonly seen in normal daily life.”
Clerk of court’s headscarf
A law student applied for the position of deputy clerk of court at the District Court of Zwolle. The student was a Muslim and wore a headscarf due to her religious beliefs. During her interview, she stated that she would not remove her headscarf during public hearings in court. The District Court then informed her in writing that it was not possible to offer her the position of deputy clerk of court due to the personal choice that she had expressed. The reason given by the District Court was that a dress code for court officials had been appointed by royal decree and that the law student’s wish to wear a headscarf while attending public hearings in the capacity of clerk of the court was contrary to this dress code. The purpose of the dress code for court officials is to give expression to the independence and neutrality of the judiciary.
The law student submitted a complaint to the Equal Treatment Commission. The complaint was held to be justified. The Commission held that the objective of the dress code, being to give expression to the independence and neutrality of the judiciary, was in itself legitimate. However, the Commission stated that it had identified a number of facts and trends “that cannot easily be reconciled with the strict interpretation and application given to the dress code by the other party.” For example, the Commission observed that some sub-district court judges and family judges presided over hearings without official dress. The Commission also pointed to the fact that it is a government objective for the composition of the judiciary to reflect, as far as possible, the composition of society. The Commission concluded from these facts and developments “that the requirement for a dress code to emphasise independence and neutrality is a relative one, or at least does not apply so rigorously under the dress code in Regulation II as the other party claims.”
A hotel in Amsterdam with an old-fashioned Dutch ambiance employed a doorman who had always attended work smooth-shaven and with a short haircut. Suddenly, he appeared wearing a turban and a beard. This was contrary to the prescribed dress code, although the employee was prepared to alter the colour of his turban. The employer applied to the Sub-District Court for rescission of the employment contract. The Sub-District Court refused the application, holding that to require a hotel in cosmopolitan Amsterdam to continue to employ a Sikh with a beard and turban did not constitute any abuse of the hotel’s goodwill. “The fact that the hotel employs a large number of persons of foreign origins and foreign appearance bears witness to the fact that the employer itself is also aware of this.”
Hotel worker with turban and dagger
A cleaner was employed by the Golden Tulip hotel in Amsterdam. On employment he had declared that he would comply with the employer’s dress code, including a prohibition on wearing a beard. Following a holiday in India, he returned sporting a turban, a beard and a (blunt) kirpan, a type of dagger. He informed his employer that he had been baptised and wished to dress according to his adopted religion in future. The employer suspended him immediately and applied to the Sub-District Court for rescission of the employment contract. The employee, in turn, issued summary proceedings requesting the Court to lift his suspension and applied to the Equal Treatment Commission for a decision. The Court rejected the application for rescission and ordered the employer to lift the suspension. The Equal Treatment Commission held that the employer had discriminated indirectly on grounds of religion.
The main issue in these proceedings was wearing the kirpan. The employer argued that this was a threat to the guests and staff and was causing disquiet among the staff. However, the Court was less impressed by the presence of the religious dagger. The kirpan is not a weapon and is not intended to be used to injure others. The Court established that neither its blade nor its point were sharper than those of a letter-opener. “In these circumstances, it is difficult to understand the serious disquiet among the staff that has been alleged.” In reaching this conclusion the Sub-District Court also took into consideration the fact that the employee himself had stated that he wore the kirpan in such a way that it was not visible at all. “The guests therefore remain unaware of the kirpan and it is assumed that the disquiet among the Golden Tulip’s staff, if indeed this is as serious as the Golden Tulip claims, can be allayed by proper information.”
Veils that cover the face
If you employ someone in a position in which eye contact with customers is required, it is very likely that you will be permitted to prohibit any veil that covers the face, such as a niqab or chador. Even though no situation where a dispute over this issue arose in the workplace has yet come to our attention, the Equal Treatment Commission has expressed a view on the matter in an educational situation, where a school prohibited pupils from wearing a veil that covers the face. In addition, in an open letter dated 16 January 2003 the National Bureau against Racial Discrimination stated that a prohibition on wearing a veil that covers the face such as a chador must be possible “but that any institution/organisation needs to establish such a prohibition on functional grounds supported by proper reasoning.” It explained that there are many jobs “in which non-verbal communication by means of facial expressions plays a significant part”. The need to be able to identify the individual concerned can also play a role.
The fundamental principle remains that as an employer you are entitled to impose requirements with respect to the external appearance of your staff. However, there are legislative restrictions on your authority to do so. Relevant factors include the nature of your business, the position held by the employee concerned, whether the dress requirements imposed are necessary in order to carry out the job properly, the location of your business and the type of customers that your business is focused on. If you object to a particular item of outer clothing, you need to be able to justify your objection in detail and support this with concrete facts. Reasons that would be considered to carry significant weight would include hygiene, efficiency, safety and house style. However, it is important that the specific reasons are plausible and that you apply them with great care and consistency. For positions in which the exchange of non-verbal communication, such as facial expressions, is important then it is highly likely that you will be permitted to prohibit employees from wearing any veil that covers the face, such as the niqab or chador.