Case no. 2/2014

Decision of1 April2014

The parties to the case:

TheEquality and Anti-Discrimination Ombud– security company B

The composition of the Equality and Anti-Discrimination Tribunal was as follows:

Geir Lippestad (meeting chair)
Ellen Katrine Hætta
Johans Tveit Sandvin
Sverre Erik Jebens

The subject matter of the case
The issue in the case is whether security company B’s uniform regulations, which prohibit the use of religious head coverings, contravene the protection against discrimination on the basis of religion, ethnicity and/or gender. The case was restricted to consideration of the head coverings kipa, turban and hijab, and not full head coverings such as the burka and niqab.

The facts of the case
Security company Bis responsible for security at several airports, including Oslo Airport (OSL). The company conducts security checks on passengers, luggage and goods, and supplies the other security services in the airport’s outdoor and indoor areas. The company has stated that it considers it very important to signal that the company is a politically and religiously neutral undertaking. Accordingly, it is very important that its employees maintain a neutral appearance by not wearing any symbols conveying a political or religious message. The company has therefore included the following provision in its uniform regulations:

“Jewellery that conveys a political/religious message shall not be worn visibly with the uniform. Religious head coverings and veils may not be worn with [security company B’s] uniform.”

Security company B’s uniform regulations also prohibit other individual expressions, such as jewellery, unnatural hair colours, visible tattoos and similar things that may cause the security officer to appear non-neutral.

Security company B’s uniform regulationsapply to all employees who wear uniforms, although the vast majority of these are security officers at Oslo Airport. The company has more than 800 employees who wear a uniform. Of these, only around 40 are not security officers. This group of 40 employees who wear a uniform comprises approximately 20 service staff and about 20 airport guards.

Consideration by the Equality and Anti-Discrimination Ombud and further proceedings:
In a letter dated 14 October 2013 to security company B, the Ombud raised –on its own initiative – the question of whether the company’s uniform regulations breached the protection against discrimination on the basis of religion or gender. This enquiry was occasioned by the Ombud’s consideration of a case concerning security company B’s protection against security officers having long beards.

In a statement dated 5 December 2013, the Ombud concluded that the uniform regulation prohibiting the use of religious head coverings contravened the protection against discrimination on the basis of religion or gender.

In a letter of 20 December 2013, security company Breplied that the undertaking disagreed with the Ombud’s assessments and conclusion, and therefore did not intend to amend its uniform regulations. Accordingly, the Ombud referred the case to the Tribunal for consideration by letter dated 8 January 2014.

The case was considered at the Tribunal’s meeting on 25 February 2014. Tribunal members GeirLippestad (meeting chair), Ellen Katrine Hætta, Johans Tveit Sandvin andSverre Erik Jebens participated in the deliberations. The Ombud was represented by Elisabeth Lier Haugseth. Security company B was represented by C, D and Advocate Eva Schei. The Tribunal’s secretariat was represented by Else Anette Grannes, Ingeborg Aas and Anette Klem Funderud.

The arguments of the parties

The Ombud submitted the following primary arguments:
Security company B’s uniform regulationscontravene the prohibitions on direct discrimination on the basis of religion in theAnti-Discrimination Act and indirect discrimination on the basis of gender in the Gender Equality Act.

Direct discrimination under the Anti-Discrimination Act
The wearing of religious head coverings and symbols is covered by the right to express one’s religion, and by the protection against discrimination on the basis of religion; see the preparatory works to the former Anti-Discrimination Act (Proposition to the Odelsting No. 33 (2004–2005), page 103). In their current form, security company B’s regulations limit the right of individuals to express their religion.

A general protection against the use of religious symbols and head coverings may have the effect of disadvantaging a job applicant or employee compared to other job applicants or employees, on the basis of religion.

If the provision in the uniform regulations is based on objective grounds, is necessary and does not constitute a disproportionate intervention with respect to the person subject to differential treatment, the action will not contravene the Anti-Discrimination Act. This will depend on a concrete assessment of whether the differential treatment serves an objective purpose and is necessary and proportionate; see page 103 of the said preparatory works. In employment relationships, the assessment of the right to make an exception will focus on the nature of the position and/or the undertaking’s purpose and what is necessary to achieve this purpose; see page 102 of the said preparatory works.

In earlier cases, including the case concerning the use of the hijab in the police service (tribunal case number 8/2010), the Ombud and the Tribunal have concluded that the consideration of neutrality is an objective purpose.

The requirement that the differential treatment must be necessary implies both a requirement that the prohibition must be suitable and that the same objective cannot be achieved without a discriminatory effect. If this is possible, the alternative must be used, provided that it does not require a disproportionate amount of resources.

Security company Bhas stated that numerous passengers are taken aside as part of the security check, and that the security officer must have a neutral and unprejudiced appearance. If this is not the case, travellers may become uncertain whether they are being assessed neutrally when being selected for a check. Neutrality is also important in view of religious conflicts and to avoid confrontations.

Conflict situations and confrontations should be avoided, but the information in this case does not provide support for the assertion that the use of religious head coverings and symbols may result in such situations. Among other things, no surveys or empirical evidence from countries with which it is natural to compare Norway have been submitted, or materials on similar situations or industries in Norway. It is assumed that any conflict situations that may arise can be dealt with by other means, including the training of staff in conflict management.

It is also important and necessary that the security staff at Oslo Airport act respectfully towards passengers. However, the Ombud cannot see that wearing the hijab or another religious head covering weakens an employee’s ability to act in a respectful and unprejudiced manner towards others. In tribunal case 8/2010, which concerned the question of the use of the hijab in the police service, the Tribunal concluded that it was not necessary in the interests of neutrality to prohibit employees from wearing a hijab with the police uniform.

In the assessment of whether the prohibition must be regarded as a disproportionate intervention with respect to those who are affected, it is noted that the effect of a protection against religious head coverings may be to exclude persons who express their religious convictions through a head covering and/or religious symbols from this type of position.

Indirect discrimination underthe Gender Equality Act
In principle, the protection against wearing a religious head covering with the uniform of security company B is a gender-neutral prohibition applicable to both genders. However, the Ombud assumes that the prohibition will primarily affect women, since it remains the case that most wearers of religious head coverings are women, and particularly Muslim women. The same conclusion was reached in earlier cases considered by the formerGender Equality Ombud and Gender Equality Board of Appeals, by the present Ombud and, most recently, by the Tribunal in the said case concerning use of the hijab in the police service.

Women who wear religious head coverings must choose either not to wear the head covering or not to apply for this type of position. They are thus put in a worse position than male job applicants or employees; see the Gender Equality Act.

As regards the assessment of whether the conditions for the exception in the Gender Equality Act are met, reference is made to the assessment of exceptions under the Anti-Discrimination Act. The same assessment will be relevant in connection with the Gender Equality Act.

Security company Bhas submitted that Article 9 of the European Convention on Human Rights (ECHR) not only confers the right to practice one’s religion, but also the right not to be religious. The undertaking has stated that female Muslim employees have said that permitting the use of the hijab will be burdensome for them because these employees will then find it difficult not to use the hijab. Reference has also been made to Article 5 of the UN Convention on the Elimination of All Forms of Discrimination against Women, which concernsbehaviour patterns based on cultural stereotyping.

When a balancing competing interests, more weight must be given to the fact that a protection against religious head coverings may exclude women from working life than to the combating of any stereotypes and cultural perceptions.

Security company B submitted the following primary arguments:
The undertaking does not intend to amend its uniform regulations, since this must be regarded as a lawful differential treatment.

Ensuring that guards have a neutral appearance is an objective purpose, and very important. In order for guards to appear neutral and be regarded as such by the public, it is absolutely necessary to prohibit the wearing of visible religious and political symbols with the uniform. Such a prohibition does not constitute a disproportionate intervention.

The uniform regulations have existed for a long time, and have been enforced consistently vis-à-vis the employees. Great emphasis is given to integrating persons with a non-Norwegian ethnic background. The uniform regulations also prohibit unnatural hair colours, visible piercings and visible crosses. In this respect, reference is made to the judgment of the Supreme Court of Denmark dated 21 January 2005 on the right of employees to use the hijab with the uniform of the Føtexsupermarket chain. In that case, the Supreme Court concluded that the woman involved in the case had not been subjected to unlawful differential treatment. Given the work performed by security officers, the objective of neutrality must be regarded as more important in the case of security officers than in the case of Føtex’s employees.

In addition to the fact that the company wishes to appear politically and religiously neutral, it is in the interest of both the employees themselves and the public that security officers have a neutral appearance.

Many travellers regard the security check at airports as burdensome and disagreeable. The check intrudes on privacy in a manner many people do not like, but which cannot be avoided if one wishes to travel by airplane. In this situation, it is important that the check is not felt to be worse than necessary, and that there are no unnecessary factors that may cause travellers discomfort. Accordingly, it is important that security officers have a neutral, unprejudiced appearance. If security officers indicatetheir political or religious affiliation, this mayimpose an additional burden on travellers, particularlyin view of their own religious standpoint. In this assessment, it is important to consider how the security check is conducted.During the security check, individuals are selected for an additional check and then subjected to a body search. If the security officer does not appear neutral and is not regarded as such, travellers who are selected may become uncertain whether they are being assessed neutrally during selection. In addition, the fact that someone is wearing religious symbols may cause problems with the body search, both if the traveller and the security officer follow different religions and, not least, if the traveller and the security officer follow the same religion but are of different genders. Security company B has emphasised that it has no doubt that security officers wearing head coverings perform the job based on neutral, objective criteria.

At present, the security check is also gender neutral. In other words, the body search is in principle conducted independently of gender. If a traveller prefers to be searched by a person of the same gender, the security check seeks to accommodate this. However, this is not always possible.

Neutrality is also important in the interests of the employees themselves and their working conditions. In performing their work, the security officers may experience different situations, including situations resulting from religious conflicts. The security officers are in direct physical contact with a very large number of travellers from all over the world, with a range of different attitudes and religious affiliations, on a daily basis. If security officers are permitted to wear religious symbols, this may result in further confrontations or religious conflicts, and inthe escalation of such conflicts. Religious symbols in themselves may also create a conflictwhere none would otherwise have arisen. Unlike police officers, security officers are not required to deal withpre-existing conflicts and situations, but will be party to any conflicts/situations that arise. Security officers do not have the same authority or powers as the police to use force to deal with conflicts. In the interests of security, the undertaking considers it absolutely crucial that security officers appear and are regarded as neutral. It is noted that staff receive conflict management training.

The undertaking is not aware of security officers being permitted to wear religious head coverings in other countries with which it is natural to make a comparison. In the countries where this is permitted, such as Muslim countries, the security check differs considerably in that it is gender-segregated. The security checks at Norwegian airports have been designed to be gender-neutral, and women and men are checked in the same manner by the same security officers. Other security companies in Norway do not permit religious symbols on their uniforms either.

The adaptation of head coverings to the uniform will not render a security officer’s appearance neutral despite the head covering. Adapted head coverings will emphasise the religious affiliation of the security officer even more strongly. Irrespective of the design of the head covering, the consideration of neutrality will be undermined.

By reference to the case law of the European Court of Human Rights, the undertaking cannot see that the protection granted under Article 9 of the ECHR is so broad as to require the use of religious symbols, including religious head coverings, to be permitted. Particular reference is made to the case law of the European Court of Human Rights relating to prohibitions on the use of the hijab.

In the case law of the Ombud, the neutrality consideration is, in principle, an objective purpose. This is consistent with the practice of the European Court of Human Rights, which shows that the neutrality consideration (under the ECHR) weighs heavily.

When assessing the necessity and proportionality of a prohibition against religious symbols with respect to achieving the objective purpose of neutrality, it must be considered that Article 9 of the ECHR protects not only the right tomanifest one’s religion, but also the right not to be religious. The undertaking has employees from more than 35 different nations, and all of the major religions are represented. Security company B has a total of 823 employees. Of these, 212 (26%) have a non-Nordic ethnic background. Sixty-seven of these (32%), are women. Surveys have shown that, of the 67 women with a different ethnic background, 23 (34%) have a Muslim background.

The employees have clearly stated to the employer that they consider it to be an advantage that the uniforms are politically and religiously neutral. In addition, Muslim women employees have clearly stated that they would consider it burdensome if the uniform regulations were changed to permit the use of the hijab. If the use of the hijab with the uniform is permitted, it will become difficult for these employees not to use the hijab. If the Anti-Discrimination Act and Gender Equality Act are interpreted to mean that the undertaking must permit the use of religious symbols, this will mean the restriction of another employee’s freedom. This would conflict with the case law of the European Court of Human Rights stating that one person’s freedom may not restrict the freedom of another. In this context, account must also be taken of the UN Convention on the Elimination of All Forms of Discrimination against Women. Article 5 of the convention covers conduct based on cultural stereotypes, which according to the UN women’s committee also includes religious stereotypes, and thus also the use of the hijab. The convention applies as Norwegian law; see section 2(5) of the Human Rights Act (Act No. 30/1999).