Asma Bougnaoui, Association de défense des droits de l’homme (ADDH) v. Micropole SA, former Micropole Univers SA, Case C–188/15, CJUE (Grand Chamber), 14 March 2017

Concept of genuine and determining occupational requirement within the meaning of of art. 4 (1) of the directive 2000/78.

Directive 2000/78/EC of the Council of 27 November 2000

1. According to the provision of art. 4 (1) of the directive 2000/78, Member States may provide that a difference of treatment which is based on a characteristic related to any of the grounds referred to in Article 1 of the directive is not to constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.Thus, it is for the Member States to stipulate, should they choose to do so, that a difference of treatment which is based on a characteristic related to any of the grounds referred to in Article 1 of the directive does not constitute discrimination.

2. The concept of a ‘genuine and determining occupational requirement’, within the meaning of that provision of art. 4 (1)  of the directive 2000/78, refers to a requirement that is objectively dictated by the nature of the occupational activities concerned or of the context in which they are carried out. It cannot, however, cover subjective considerations, such as the willingness of the employer to take account of the particular wishes of the customer, Therefore, the willingness of an employer to take account of the wishes of a customer no longer to have the services of that employer provided by a worker wearing an Islamic headscarf cannot be considered a genuine and determining occupational requirement within the meaning of that provision.