Mar 14th 2017
EMPLOYERS are entitled to forbid their Muslim staff from wearing headscarves as long as it is part of a consistent practice of banning the display of religious or ideological symbols, and not a one-off action aimed at satisfying the demands of a particular client.
That was the main thrust of a decision issued today by the European Court of Justice (ECJ), a Luxembourg-based tribunal whose job it is to interpret and uphold the laws of the European Union. “An internal rule…which prohibits the visible wearing of any political, philosophical or religious sign does not constitute direct discrimination,” the court said.
The ECJ judges were looking into the cases of a Belgian woman who was fired from her job as a receptionist at a security company after she started wearing a headscarf, and of a French IT consultant who was told to remove her scarf after a client complained, and then dismissed when she declined.
In both cases, the ECJ suggested that national courts needed to investigate further to establish whether the women had been discriminated against. In the Belgian case, the court recommended working out if there might have been a simpler solution such as transferring the employee to a role where she was not in contact with the public. Regarding the French consultant, it considered it necessary to establish whether the disciplinary action was purely a response to the client’s whim (which appeared to be the case and would be insufficient grounds for a dismissal) or a legitimate consequence of a broader policy. Taken as a whole, today’s decision upheld the right of employers to enforce ideological neutrality in the workplace as long as it was done fairly and consistently.
This marks a contrast with the thinking of America’s Supreme Court, which in 2015 vindicated a Muslim woman who had been turned down for a job by the clothing chain Abercrombie and Fitch on the grounds that her headscarf was out of step with the look the company was promoting. Since 1964, American civil-rights legislation has told employers to provide “reasonable accommodation” of their workers’ religious needs, unless it would be unbearably burdensome to do so. Today's decision also reflected a more secularist spirit than did one by the European Court of Human Rights in 2013, which upheld the right of a Christian woman to wear a discreet cross with her British Airways uniform.
Today’s judgement might look like a careful, Solomonic piece of jurisprudence designed to take the sting out of a contentious issue by steering a course down the middle. But so charged is the political atmosphere in Europe these days that it is likely to have the very opposite effect.
The decision was instantly deplored by Islamic and some other religious groups, as well as some secular human-rights campaigners including Amnesty International, for legitimising discrimination. No less speedily, it was welcomed by some of the resurgent forces on Europe’s cultural and political right, including Germany’s anti-immigrant "Alternative for Germany" party.
The ruling does indeed appear to be good news for Marine Le Pen, the French presidential candidate who would like to see all conspicuous religious symbols removed from public spaces. It should also please the right-wing standard-bearer in this week’s Dutch elections, Geert Wilders, who has listed the headscarf as one of the many manifestations of Islam that he would like to see much less of. Francois Fillon, the centre-right (and culturally conservative) candidate in the French presidential race, was among the first public figures to welcome the ruling.
A more liberal-minded and middle-of-the-road defence of the decision came from Britain's National Secular Society, whose campaigns director Stephen Evans said that for bosses, "religious and political neutrality is a perfectly reasonable aim." Meanwhile intense Muslim unhappiness over the ruling was articulated by the Islamic Human Rights Commission, a London-based lobby group, where a spokeswoman said: “This gives legal cover to what is essentially an ongoing hate campaign to make Muslims second-class citizens in Europe. It will only increase feelings of marginalisation and disenfranchisement in Muslim communities.”
The ECJ's ruling is a call to apply a single, transparent rule to people of all creeds and cultures. But religious and cultural symbols seem to be an area where nobody can agree on what "neutrality" really means.