Legal Report: EU Member States Allowed to Ban Employees’ Religious Garb
Judicial Decisions
France
Police accountability. The Conseil d’Etat, France’s highest administrative court, ruled that police officers’ identification badge numbers must be clearly and prominently displayed.
Four human rights organizations and professional unions—including the Ligue des Droits de l’Homme (LDH), the Action des Chrétiens pour l’abolition de la torture (ACAT) association, and trade unions for magistrates and French lawyers—filed the case that called for making officers’ badge numbers larger so the numbers are readable when police are responding to protests or other large-scale events.
The groups cited multiple previous instances when a civilian was injured during a protest by a police officer but the person was unable to pursue legal actions because the officer could not be identified. In some instances, the badge number was either absent or the numbers were covered, according to the court decision. The groups filed the case after being denied the same request by the Minister of the Interior and Overseas Territories.
Despite general reminders from the ministry, “there is widespread failure by police officers and gendarmes to wear their identity numbers visibly,” according to a public statement issued by the court.
The court ordered the Minister of the Interior and Overseas Territories to modify the badge numbers by 11 October 2024. The decision specifically pointed to increasing the size of the numbers “to guarantee sufficient readability for the public.” The current size for the seven digits that comprise an officer’s identification number are less than 1 centimeter high and on a removable band that is typically worn on the shoulder or chest.
The court also ordered the French government to pay the Ligue des Droits de l’Homme and the ACAT 1,500 euros. (Conseil d’Etat, No. 467771, 2023)
European Union
Religious expression. The EU’s Court of Justice ruled that EU member states can ban employees from wearing religious symbols, including hijabs, while at work.
The decision came after a Muslim employee working in Belgium filed a lawsuit in 2021 against her municipal employer after being told that she could not wear a headscarf at work. Although the municipality had an existing neutrality employee policy regarding religious symbols in the workplace, the policy was further amended after the case was filed to state that employees were required to be “strictly” neutral in their appearance and prohibited from exhibiting ideological or religious affiliations.
Although the employee claimed that her freedom of religion was infringed upon, the court decided that member states’ lawmakers had some authority to determine the extent of a neutrality provision. Neutrality provisions order employees to “refrain from any form of proselytizing,” as well as wearing any indicators of the employee’s ideological, philosophical, political, or religious beliefs, according to court documents. (OP v Commune d’Ans, Court of Justice of the European Union, ECLI:EU:C:2023:924, 2023)
Legislation
U.S. States
Criminal history. To prevent discrimination against job applicants who served and completed a prison sentence, New York recently enacted a bill that will seal the records of certain criminal convictions.
Governor Kathy Hochul signed the Clean Slate Act (A01029C/S07551-A) into law in November 2023. The law will seal eligible felony convictions—those which are not sex offenses or Class A felonies (which include aggravated murder)—at least eight years after the convicted resident completed his or her sentence. Eligibility is also contingent upon an applicant maintaining a clean record since the date that the applicant was released from prison—meaning he or she does not have a pending criminal charge. Applicants currently under probation or parole are ineligible.
Eligible misdemeanor convictions can be sealed three years after the sentence is completed, or, in cases where the sentencing did not mandate prison time, three years after the sentencing.
The law goes into effect on 16 November 2024. The responsible state agency—the Office of Court Administration—will have three years to identify and seal all eligible records. Employers would not be allowed to ask about a conviction once it has been sealed, and job applicants will not be required to disclose the conviction when asked about a criminal history.
Discrimination. New York enacted SB4516, which extends protections that originally restricting confidentiality agreements from preventing sexual harassment victims from disclosing abuse to prevent continued or future harassment. Effective immediately, the same protection is extended to other forms of discrimination, harassment, or retaliation.
In general, employers in the state are banned from requiring employees to sign a nondisclosure agreement when there is a claim of discrimination, unless the employee prefers confidentiality.
Marijuana use. Two new state laws in California will impact how employers can deal with previous or current marijuana use among hopeful or existing employees. Both laws will take effect on 1 January 2024.
In October 2023, Governor Gavin Newsom signed SB700, which will ban employers from discriminating against a job applicant based on prior criminal charges related to cannabis use. Employers will also be prohibited from asking about an applicant’s past marijuana use during the interview process. Employers in construction sectors, plus those required to ask about cannabis use as part of a federal background check, are exempt from the law.
AB 2188 bars employers from using drug tests for non-psychoactive cannabis metabolites, protecting employees’ right to use of the drug while off the job. These metabolites linger in the body longer than tetrahydrocannabinol (THC, which is the primary psychoactive component of cannabis), and testing positive for them indicates that someone has consumed a marijuana product within the previous two to three weeks.
The law does not prohibit employers from other tests, including ones that gauge if an individual employee is impaired when compared to his or her own baseline performance or tests that determine if THC is present in bodily fluids.
Employers in the state of Washington will face similar restrictions starting 1 January. With the enactment of RCW Ch. 49.44.240 (previously SB5123), employers cannot discriminate against job applicants due to legal marijuana use occurring while off duty. Employers are prohibited from using results from drug tests that screen for non-psychoactive cannabis metabolites when deciding whether to hire someone.
Other scientifically valid drug tests will still be allowed.
Regulations
United States
Union interest. The U.S. National Labor Relations Board dismissed a complaint against Tesla Inc. that claimed the automaker illegally fired employees at a Buffalo, New York, facility to stop workers from union organizing. The complaint was originally filed in February 2023 by the union Workers United.
Tesla argued that the dismissal of dozens of staff was due to performance reviews.
Although the complaint was dismissed, an investigating labor board official determined that the company had an unlawful rule on employee use of technology in the workplace, and it supported another claim that Tesla solicited complaints from workers about union activity. If the company cannot reach a settlement with the board, formal complaints will be filed. (Tesla, Inc., U.S. National Labor Relations Board, No. 03-CA-312449, 2023)
Quality control. The Public Company Accounting Oversight Board (PCAOB) announced three settled disciplinary orders that together resulted in roughly $7.9 million in fines against three PwC firms based in China and Hong Kong, plus four individuals. The firms and individuals are accused of violating U.S. securities laws and board rules and standards concerning integrity and personnel management.
These are the first enforcement settlements the board has levied against mainland China and Hong Kong firms since 2022, when the PCAOB was permitted to inspect and investigate firms headquartered in these areas, according to the PCAOB. The fines are also one of the highest that the PCAOB has ever imposed against any organization.
A total of $7 million in fines against two public accounting firms—PricewaterhouseCoopers Zhong Tian, LLP, and Hong Kong-based PricewaterhouseCoopers—for violating quality control standards on integrity and personnel management mandated by the board. The remaining fine of $940,000 was issued against Shandong Haoxin Certified Public Accountants Co., Ltd., with four of its employees accused of issuing a fraudulent audit report, among other claims. Shandong Haoxin was also ordered to retain an independent monitor and impose practice limitations to ensure compliance with PCAOB standards.
Also of Interest
Security Management also tracks instances where security incidents and interests intersect with judicial, legislative, and regulatory agencies. The following are stories of potential significance.
Active shooter. The families of three Black people who were killed at a Florida Dollar General store by a racist shooter filed a lawsuit against the store’s landlord, operator, and the security contractor. The suit claims that the three defendants’ negligence in failing to provide adequate security contributed to the victims’ deaths.
COVID-19. The U.S. Supreme Court issued a summary judgment that dismissed the case against President Joe Biden’s COVID-19 vaccine mandate for federal employees. The court determined that the case is no longer relevant and instructed the U.S. District Court for the Southern District of Texas that it vacate its preliminary injunction as moot.
Discrimination. Colorado’s legislature is expected to pass a bill that would prevent employers and landlords from discriminating from people who are overweight, prohibiting landlords from denying a lease because of someone’s weight and forcing employers to make adjustments in the workplace.
Discrimination. The Russian Supreme Court determined that activists who are part of the “international LGBT public movement” will be classified as extremists. The court issued a ban on any activities related to the movement, although it was unclear about which activities, people, or groups will be considered part of this “extremist” organization.
Face coverings. In a 13-2 vote, Philadelphia’s city council approved a bill that would ban ski masks, or balaclavas, in certain public areas—including schools, recreation centers, parks, public transportation, and city-owned facilities. Opponents of the proposed law said it will allow police to stop people without probable cause and that there is a lack of evidence that balaclavas cause or encourage crime.
Sexual assault. A family is suing American Airlines after the family’s 14-year-old discovered an iPhone that a flight attendant allegedly taped to the plane’s toilet to record the teenager while she used the bathroom. The family claims that the airline should have known the flight attendant was a risk and that other crew members failed to prevent the employee from destroying evidence.
