Key facts of the case - In 1996 A. was hired in a supermarket in position with customer contact. The employees in the supermarket were expected to wear the clothes they were given, according to the dress code. In some cases this included different forms of headdress. An employee brochure added that when not wearing compulsory headdress it was expected that the employees with customer contact had their heads bare. In 2001 A. declared that in the future she would wear a headscarf for religious reasons. A. was then removed from her position.

Main reasoning of the Court - The Court deems that the prohibition against headdress has a disproportionate impact on those Muslim women, who chose to wear headscarves for religious reasons. The Court finds that this form of indirect discrimination is not unlawful if it is objectively justified on account of the work. The legislative history of the Act on prohibition against discrimination in respect of employment etc. names uniforms and other dress requirements as examples that can be lawful even if they have a disproportionate impact on a protected group. The Court finds that it has no impact on the lawfulness whether employees are required to wear a specific headdress or they are required to abstain from wearing headdress. On these grounds the Court holds that the enforcement of the supermarket’s dress code against A. did not infringe the Act on prohibition against discrimination in respect of employment etc. or Article 9 of the European Convention of Human Rights.

Comment - The two leading cases (Magasin in 2000 and Føtex in 2005) resulted in a general understanding of the law, that gives employers in the private market a right – within general standards of decency of course - to institute a formal dress code on their employees and that employees are not entitled to exemptions on account of their religion. That is: if an employer does not want a religious veil as part of the dress code, then the employee cannot wear a veil – she has to find another job. In practice however, these cases also set a standard which has not been followed in the aftermath.
The same stores, that won the cases, have now many employees, also in front line, wearing a veil combined with the dress code of the store. It is as if the norm now is: find a pragmatic solution instead of using courts for that.