WORLD VIEW: Hijab ruling opens EU Pandora’s box

By Sara Silvestri

EMPLOYERS  across Europe have been given the green light to ban staff from wearing religious and political symbols after a ruling by the Court of Justice of the European Union (ECJ).

The ruling opens up a Pandora’s box and could disproportionately affect Muslim women facing requests to remove headscarves in some places of work across Europe.

But it is also likely to affect other people that display their religious affiliations through their dress, such as Sikh men, Orthodox Jewish women, nuns working in hospitals or schools, or those who overtly display their political affiliations or sympathies.

The ECJ ruling related to two cases brought by national courts in France and Belgium, regarding Muslim women who had sued their employers. The women argued that they had been discriminated against at work for being asked to remove their veils – one by the employer and the other by a customer and subsequently by her employer – and were sacked when they refused to do so.

Within the EU, national laws about equality and non-discrimination in the workplace are governed by an overarching EU directive from 2000, and the French and Belgian courts wanted clarification from the ECJ around how to interpret the law in these cases.

The ruling will not allow employers to systematically ban the hijab and other religious and political symbols in all workplaces, but it does provide ammunition for those who want to ask their staff not to display religious symbols.

The ECJ decided that if an employer’s goal is to provide services to customers in a neutral way, it is entitled to request its employees to remove visible religious or political symbols.

But this logic around respecting the neutrality of the employer’s goals remains fuzzy, and seems to go against a previous ruling from the European Court of Human Rights, which has upheld the rights of employees to display religious symbols at work as part of their religious freedom.

The ECJ judgement also specifies that requests from customers asking employees not to wear religious or political symbols will not constitute a legitimate ground for employers to ban such clothing.

In fact, the ECJ said this reasoning would amount to religious discrimination. However, in an age where many employers take a customer-centered approach to their organizational goals, this could be a fine line.

The two plaintiffs in this ECJ case were from Belgium and France, countries in which vehement “laïcité” or state secularism already underpins laws regarding religious dress and has led to burqa bans. But as the ruling will affect the whole of Europe, not just France and Belgium, it is unclear how much the ECJ judges considered the implications of their ruling for other countries which do not share the French and Belgian policy of laïcité.

Thankfully, the ECJ’s jurisdiction does not pertain to religious freedom in general, and so the scope of this ruling is relatively narrow and limited to non-discrimination in the workplace. But its ruling is frustrating and contradictory, particularly as the EU was a pioneer in establishing the principles of equality and non-discrimination on religious grounds in a person’s occupation with the directive in 2000. The EU even set up an independent EU Agency for Fundamental Rights in 2007 to share good practices and research and to monitor EU countries in this area.

At a time when Europe is short of big ideals and existing conflicts and demographic transformations indicate we need to pay more, not less, attention to freedom of religion and of expression, it does not help that such a prominent international court is unwilling to be bolder in dealing with these fundamental freedoms and the idea of tolerance.

This is new territory for the ECJ and the scope of its ruling is unprecedented. So far, controversies about religious symbols in Europe have been considered by the European Court of Human Rights, an institution outside of the EU, because they dealt with issues of human rights and freedom of religion. The ECJ, an EU institution based in Luxembourg, had previously ruled on employment matters associated with non-discrimination and equality, but until now no such case had been brought there specifically on the grounds of “religious” discrimination.

Concerns have already been raised about how the ruling will affect Muslim women across Europe, whether they wear the hijab or not – at least on an emotional level.

Yet, unless employers and national courts in different EU member states come across court disputes similar to those presented in this ruling, then this judgement will sit in a drawer without directly affecting people. Still, the ruling is likely to provide ammunition and political legitimacy to all those across Europe who are promoting anti-Muslim, anti-religious or anti-migrant feelings.

A serious implication is that EU states will now no longer need to create an anti-veil law for anti-veil views and behaviour to be established and legitimised in everyday life – they are now implicitly sanctioned by this ruling. The outcome could easily be prejudice, erosion of societal relations, intolerance, racist incidents, and fear among Muslim and other religious communities.

In the wake of Brexit, the ruling will have only a temporary effect in the UK – unless the British government decides to permanently incorporate this particular bit of EU law into its own body of law once the UK leaves.

To date, the government has a firm position on hijab and burqa bans that it looks unlikely to change, viewing them as unnecessary and even counter-productive.

It’s therefore possible that after Brexit, the UK might become the only place in Europe where Muslims and other religious communities can take up jobs without being too worried that they will have to remove religious clothing, although this is not to dismiss the existence of anti-Muslim feelings in the UK.

In an unintended consequence of the ruling, the UK might actually become more attractive to Muslims for professional reasons than the rest of the EU.