EU Top Court Fails to Guarantee Muslim Women’s Right to Wear a Headscarf at Work

EU Top Court Fails to Guarantee Muslim Women’s Right to Wear a Headscarf at Work

The Court of Justice of the European Union (CJEU) has ruled that it is not direct discrimination on grounds of religion for an employer to bar workers from wearing religious clothing. This illogical judgment, in the cases brought by Samira Achbita of Belgium and Asma Bougnaoui of France, is driven by political considerations in a minority of EU states and threatens the coherence of European Union equality law. It pushes national law-makers and judges to choose whether to apply this weak approach, or to ensure effective protection of religious minorities and to challenge Islamophobia.

This ruling is the first time the highest court of the EU has considered “discrimination on the grounds of religion.” The court rightly recognized that “religion” includes holding a religious belief and how that belief is manifested (para 28). The Court also accepted that an employer’s rule barring manifestation of religion could be more likely to affect particular religions (para 34). Based on this view, the court said that a rule could be indirect discrimination, though it held this could be justified by employers who want to give customers the impression that they do not employ religiously observant staff.

But the Court of Justice accepted the fundamental claim of the Belgian employer that a ban on wearing religious clothing is “neutral”—and is not direct discrimination. The court said that a rule which covers “any manifestation” of belief does not discriminate on grounds of religion.

The Court completely fails to reconcile this claim with its acceptance that “religion” includes a person’s choice of manifestation of religion. As the court’s Advocate-General Eleanor Sharpston argued, an employee who had not chosen to show their religion through clothing is treated differently from one who has (para 88 of her Opinion). A rule that expects every person to have the same outward appearance is not neutral: it deliberately discriminates against people because they are visibly religious.

Across Europe, Muslim women wear the headscarf as private and public employees, working for employers who consider themselves neutral. While the G4S in Belgium dismissed Ms Achbita from her job as a receptionist for wearing a headscarf, the British G4S employed women wearing headscarves as security at high profile events like the London Olympics. Scotland’s police force incorporates the headscarf in its uniform.

But in a few countries, especially Belgium and France, “headscarf bans” are demanded by right-wing politicians to scapegoat Muslims. Dressing up discrimination as “neutrality” and claiming they only wish to ban expressions of religion, they have sought to shut out from public life those Muslim women who choose to wear the headscarf, and to bully employers into following this line. Many employers in these countries continue equal treatment, welcoming workers from diverse religious backgrounds, others have responded to pressure. While these countries are few within the European Union, their concerns have had peculiar effect on the court in this case.

The CJEU interprets EU equality law—but it does not prevent each Member State securing more effective protection. So this judgment takes the debate on laws to the pan-European level. Will activists, law-makers and judges allow employers to refuse to employ people because they wear religious clothes: not only Muslim women, but, for example, Sikh and Jewish men. We can expect to see calls for national legislators to make clear—at national level—that such rules are prohibited discrimination. Unlike the Court of Justice, many others will not want to legitimize discrimination against religiously observant employees.

By this high profile ruling which would close the middle ground, the Court polarizes legal and political debates. It politicises employers’ dress codes, encouraging stark contrasts between employers who ban religious clothing and those who do not discriminate. Racists and Islamophobes will be emboldened to claim that diverse work-places are “not neutral,” protesting the employment of visibly religious staff.

The court also takes a contradictory approach to the importance of customer opinions. It claims that a discriminatory code barring religious clothing may be more justifiable for customer-facing staff (Achbita para 38), yet reasons that customer preference is not a ground for an employer to require an employee to change their dress (Bougnaoui para 40). In the court’s view it is “legitimate” for an employer to “project an image of neutrality” by limiting customer-facing staff to those whose religious beliefs are invisible, while still employing hidden staff who wear headscarves and turbans. These contortions underline the incoherence of the court’s approach.

The judgment also poses a threat to the wider protection of equality law. If it is “neutral” to bar manifestation of religion, is it legitimate to bar manifestation of ethnicity or sexuality, for example, through language or clothing?

The Court of Justice has made serious mistakes before. In the 2003 Akrich judgment, the court excluded irregular migrants from the protection of family unity with EU citizens. Five years later, the court explicitly reversed that judgment, accepting the contrary arguments in the Metock case.

The European Union is founded on the values of equality and pluralism. As the EU faces existential threats, these cases provided the court a great opportunity to make a clear public statement that in Europe, all are equal, including the religious and the non-religious. The court could—like Advocate-General Sharpston—have affirmed a Europe of diversity, in which all that matters to an employer is the quality of the work, not the beliefs of the employee. Sadly, we will need to wait some time for Muslim women to enjoy full participation in workplace, across Europe. Until then, national courts and lawmakers must use their legal powers to prevent the legitimation of Islamophobia in the workplace.

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I don't think the information given here is entirely correct. The rulings from the European Court are binding, and this specific ruling extends the laïcité principle across all EU member states. National regulators will now NOT be able to demand that companies allow employees to wear headscarves, if they simply use a general rule of 'neutrality' (and if the employee can be visible to customers). Demanding religious freedom/non-discrimination would thus be seen as an infringement of the employer's right to conduct business?

Are employers who choose to discriminate, by banning Muslim hajibs, for example, then be required to discriminate against all religions within the company? No necklaces with crosses or crosses on desks or headgear for Jewish men or beards for other religions? What if a jajib wearing employee who doesn't generally interact with customers walk into a reception area and is seen by customers, is there now a legitimate, legal reason for dismissal? Being racist may be more difficult and complicated and hopefully counterproductive for employers. And all that's a good thing.

I find it interesting that this article doesn't point out that it may be part of an employer's religious beliefs to not employ people who are active in another religion. Since a potential employer doesn't owe anyone employment, it is not anyone's fundamental right to be employed by a specific employer. And since people who are employed by employers who's policy prohibits the wearing of headscarfs must have agreed to such a policy, we can assume the employee was okay with such a prohibition (or else s/he would have seeked employment elsewhere). Either way, it would be against my religious beliefs as an employer to employ a practicing Muslim. My religious rights are just as important as anyone else's, no more so and no less so. If someone feels I owe them a job, they would be wrong, since I never agreed to employ someone who would fail to dress according to my policy.

I've struggled against intolerance and prejudice since I was a child yet this hijab issue is unresolvable for me so far and hostility I've eschewed rises up within me at the mention of its social relevance. My retorts: 1.EU built on plurality AND is breaking up. 2. Covering hair is for modesty per Qu'ran but heavy makeup, accentuating lips (the sexuality of which is beyond dispute) and eyes is very seductive and may not have existed when hair covering was a rule. 3.My Iranian friend barely off the plane in Iran had Vigilante Dress Patrol teen demand she wear a scarf 4.Might there be some compromise on the extreme nature of the hijab over a more international style of scarf? 5.Must African women from rural Congo be allowed to go bare breasted to work too?6.Might hijab be an example of a people who refuse to tolerate the life-style, values of their host country? 7. Might giving in on the hijab signal toleration for more radical expressions? 8. Would it be more common a course for history of immigrants to endure blending in until when another Muslim opens a company, store, stall and hires them in burkas if they wish? 9. If I look thru the window into a travel agency for example and see sikhs, hijabs, sari's, Buddhist monks behind the desks, the stigma against language accents, knowledge of my destination options, common sense of what I'm seeking, awkward silences and misinterpretations may well send me walking on to a more Westernized agency. I'm a psychologist and see how often the stigmatizing of mental health patients affects them negatively in school, job interviews, social clubs etc and some are told to declare their problems to show people they're not babbling with hallucinations. Stigma is deeper even than prejudice, I can feel it, not reachable intellectually so shouldn't people all have to wait it out through generations til it's weakened by time and natural exposures? Vietnamese didn't arrive in their harem pants and veils...if they'd insisted then, would they have had the right? (I can't believe I'm using some reasons from Right Wing haters but why should WE have to modify our ways for a minority? Truly, I'm torn and long for resolving this inner conflict and the feelings of rejecting out-of-hand this custom that runs so counter to equal rights for women and the ancient history of hostilities between Judeo-Christians and Muslims)

...and, fine by me if Christians stop wearing crosses and praying hands publicly as well.

I may have been too pessimistic. At least the 'customer view' criterion has only been applied to this specific case: draconian 'neutrality' codes may be deemed unnecessary in other cases? Hopefully there are good ways for the states to provide more effective protection. The whole neutrality thing, though, is fictional and problematic. The Court's decision is very worrying.

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