On July 15th, the Luxembourg-based European Court of Justice upheld a ruling that ‘prohibits the wearing of any visible form of expression of political, philosophical or religious beliefs in the workplace.’ This ruling affects all ‘employees who observe religious precepts requiring certain clothing to be worn,’ such as religious crosses, crucifixes, skullcaps, turbans, and headscarves.
This ruling particularly impacts the European Muslim community, specifically Muslim women who wear the Islamic veil, known as the hijab, in work settings. The hijab symbolizes devotion, modesty, and submission to God; it is also an emblem of respect and dignity. Observation of the hijab entails covering the entire body, leaving only the hands and face exposed. The European Court of Justice specifically refers to the prohibition of the headscarf that covers the head and exposes the face. That headscarf is a crucial part of the hijab.
The European Court of Justice has outlined that prohibiting headscarves in workplaces can be justified by the ’employers need to present a neutral image towards customers or to prevent social disputes.’ The court highlights that this ‘justification needs to correspond to a genuine need on [the] part of the employer and that national courts may take into account the specific context of their member states and other more favourable national provisions on the protection of freedom of religion.’ This means that the European Court of Justice does not prevent member states from securing and implementing more effective laws. Essentially, it is up to lawmakers, activists, and judges to prevent the implementation of discriminatory laws against religiously observant employees in their respective member states.
The European Court of Justice applied this ruling in two recent cases concerning Muslim women who were suspended from their employment after they started wearing the headscarf. One of the Muslim women worked at a child care centre and the other as a cashier at a pharmacy chain. Both were told by their employers that they had to remove the headscarf or find a different job. In response, the court acknowledged that ‘wearing signs or clothing that represent religion is protected by the freedom of thought, conscience, and religion‘. However, the court then pointed that this ruling ‘does not necessarily constitute direct discrimination provided that it covers all manifestations of such beliefs and treats all workers the same way, by requiring them to dress neutrally.’ The court held that there are specific elements that the employer must satisfy before exercising this ruling. Evidence must be provided that showcases how the ’employer’s business would be undermined and would suffer adverse consequences’ if such display of neutrality was not observed.
This has triggered outrage not only from the European Muslim community but from Muslims all around the world. Al Jazeera reports that the issue concerning the prohibition of hijab in Europe has sparked years of controversy. France, home to Europe’s largest Muslim population, has recently passed a controversial bill, known as the Separatism bill, that aims to preclude minors from wearing the Islamic headscarf in public and ban religious symbols from school trips.
Maryam H’madoun, a senior policy officer at the Open Society Justice Initiative (OPSJ), and Simon Cox, who also works at the OPSJ as a migration lawyer, published an article in 2017 criticising the European Court of Justice’s initial ruling concerning ‘discrimination on the grounds of religion.’ The court claimed that prohibiting employees from wearing religious clothing is not direct discrimination. In response, H’madoun and Cox argued that the court’s rationale is an illogical judgment that threatens the coherence of the European Union Equality Law. Both H’madoun and Cox state that the ‘court polarises legal and political debates.’ It politicizes dress codes, ‘encouraging stark contrasts between employers who ban religious clothing and those who do not discriminate.’ This ruling will embolden racists and Islamaphobes who will use the court’s ruling to argue that diverse workplaces are not neutral. Moreover, the article highlights that the court has taken a contradictory approach to the importance of customer opinion. In fact, customer preference is not a legitimate ground for an employer to require employees to change their dress.
Eleanor Sharpston, a former Advocate-General at the European Court of Justice, has recently published a “Shadow Opinion” arguing that an employee who has not displayed their religion through clothing is treated differently from one who has. This implies that the court is ‘deliberately discriminating’ against people who choose to visibly show their religion, compared to those who choose to practice it in their private lives.
Sharpston highlights that any ‘direct or indirect discrimination based on religion, belief, disability, age or sexual orientation should be prohibited throughout the community.’ In her ‘Shadow Opinion’, Sharpston cites the German judges of the National Socialist Party’s rise to power in Germany during the 1930s, resulting in the ‘horrifying discrimination against race, religion, and ethnic origins.’ This discrimination ‘sparked the Second World War which erupted in genocide and crimes against humanity.’ Sharpston emphasized that the creation of Article 2 of the Treaty of European Union ensures that such atrocities would never happen again. This provision expressly acknowledges the ‘value of respect for human dignity, freedom, equality, the rule of law, and respect for human rights, including the rights of a person belonging to minorities.’ Sharpston argues that women who wear the headscarf to work have the ‘right to conduct themselves in accordance with the convictions of their faith.’
The European Court of Justice has acted disproportionately. Claiming to create an image of ‘neutrality’ within the workplace by actively discriminating against those who choose to publicly practice their religion cannot be justified. This ruling threatens cultural and religious diversity within workplaces that not only limits business growth but hinders intercultural communication. Most importantly, this ruling contradicts the right to human dignity and the rights of a person belonging to minorities as stated in Article 2 of the Treaty of European Union. Each member state of the European Union has the responsibility to ensure that this discriminatory ruling will not be implemented in their national provisions. The OWP will continue to monitor the situation very closely.
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