Simon Perfect explains a recent ruling by the European Court of Justice about the lawfulness of hijab bans and neutrality policies in European Union workplaces. 04/08/2021
Say you run a café in a sleepy European village. One day, your Muslim employee tells you she wants to wear the hijab to work. Suddenly, the sleepy village wakes up in an angry mood. Your regulars complain that they do not want to be served by someone wearing (what they see as) a sign of oppression. News spreads, people start to ‘cancel’ your café; your income falls. What do you do?
A) Insist on your employee’s right to wear the hijab, and face financial distress.
B) Ban staff from wearing the hijab, and tell your employee she must stop wearing it or be sacked.
C) Ban staff from wearing any religious symbol or religious clothing in order to present a neutral image. If your employee refuses to comply, sack her.
D) Offer to move her to the kitchen away from customers, where she can still wear the veil. Again, non–compliance leads to dismissal.
This is the kind of scenario that a recent ruling from the European Court of Justice (ECJ), the European Union’s highest court, sought to address. Last month Muslims around the world celebrated Eid al–Adha, the festival commemorating the devotion to God of the Prophet Ibrahim (Abraham). But for many Muslims in the EU, celebrations will have been marred by the headlines that the “Hijab can be banned at work”, following the Court’s decision.
But has the Court really just said our fictitious café owner could ban the hijab?
The ruling (which, it should be made clear, won’t affect the UK) responded to two cases in Germany.[1] Both involved Muslim women who were dismissed for refusing to observe new company prohibitions on religious symbols (in one case, the ban was on any visible signs of political, religious or philosophical beliefs; in the other, the ban was specifically on “conspicuous, large–sized” signs of such beliefs). In each case, the German courts sought the opinion of the ECJ in how to handle them. The cases are about the rights of employers to conduct a business freely (Article 16 under the EU’s Charter of Fundamental Rights) versus the rights of employees to manifest their religion or belief (Article 10).
Rather than breaking new ground, as implied by the media response, the ECJ’s ruling largely reiterates one it made in 2017.[2] In the 2017 cases (which also involved Muslim women disciplined by their employers for wearing headscarves), the ECJ held that bans on specific religious symbols like the hijab (option B in our scenario) are unlawful as they amount to direct discrimination, where one group (in this case, Muslims) is treated less favourably than others. This was a partial step forward for religious freedom, making it harder for employers to directly discriminate against specific religious groups.
However, the ECJ also said it could be lawful for our café owner to pursue option C: a ban on all visible signs of religious, philosophical or political beliefs. The Court acknowledged such a policy could amount to indirect discrimination – where a policy applies to everybody, ostensibly treating them the same, but in practice causes “particular inconvenience” to some people more than others.[3] But indirect discrimination could be lawful if it is an “appropriate” and “necessary” means of achieving a “legitimate aim”. In the latest ruling, the ECJ has clarified that a “genuine need” to prevent “social conflicts”, or to offer a “neutral image” to customers, could be a legitimate aim for a ban, if the employer can demonstrate they would face adverse consequences without it.[4]
Not all bans are made equal, however, and in the latest ruling, the Court says that a neutrality policy could only be lawful if it is applied consistently and systematically to all signs of religious, philosophical or political beliefs, regardless of how big or small those signs are. Only banning prominent or large ones would treat one religious group (particularly Muslims) worse than others, amounting to unlawful direct discrimination. This will make it harder for employers to introduce a hijab ban on the sly, by prohibiting large symbols only. In addition, the ECJ’s rulings suggest that a neutrality policy restricted only to customer–facing employees could be more permissible than a universal policy on all staff.
Beyond these guidelines, though, the ECJ has given wide freedom to national courts on how they decide these religion or belief cases. EU member states have a “margin of discretion”, meaning a level of flexibility in how they apply EU law to suit their national context.[5] (Similarly, the European Court of Human Rights grants states a “margin of appreciation”; it has cited the doctrine when upholding, for example, the decision of French courts which had prioritised the French principle of strong secularism over a public sector worker’s religious freedom when she was dismissed for wearing the hijab).[6] In the 2017 ECJ cases and again in the latest case, the ECJ has put strong emphasis on this principle – largely leaving it up to national courts to decide whether or not a particular workplace policy is directly or indirectly discriminatory, and if the latter, whether it is justified. In the latest ruling, the Court says that if there are national laws that give stronger protections to individual religious freedom in the workplace, then the national courts can take these into account in their judgements.[7] This is a welcome clarification, meaning that the ECJ’s rulings set a minimum baseline of protection to religious freedom that states can add to.
Taken together, the 2017 rulings and the recent rulings ensure that EU employers can’t introduce an explicit, and humiliating, rule specifically preventing their Muslim women from wearing the hijab. In this sense, the rulings are actually a partial step forward for religious freedom from pre–2017, restricting the likelihood of direct discrimination against particular groups. And the latest ruling has further tightened the conditions for a neutrality policy, by emphasising that employers would have to demonstrate their “genuine need” for it. But a partial step forward does not mean decisive protection for religious freedom. By reiterating the lawfulness of neutrality policies, the Court has confirmed the interests of employers can indeed trump individual religious freedom under certain conditions.
Secularity does not equal neutrality
What should we make of all this? Some commentators see the rulings as pragmatic and the best that could be done in a difficult situation. Law professor Ronan McCrea notes that across Europe there are very different expectations about religious expression in public; for the Court to impose one particular approach on member states would be both “immodest in the extreme” and an unwise aggravation of Eurosceptics.
But pragmatism aside, the rulings perpetuate, rather than redress, inequality between religious minorities and the secular (or culturally Christian) majority. Even if applied consistently to all signs of religious or political belief, a neutrality policy would still make life very difficult for many religious people, forcing them to choose between their job and their deepest convictions. This would particularly affect Muslims, especially Muslim women, who already face multiple obstacles in the workplace on account of their religion, gender, and often ethnicity. But it would also negatively affect anyone who believes they need to wear visible religious symbols at all times – Christians with crucifixes, Jews with kippahs, Sikhs with turbans and kirpans. Neutrality policies avoid the humiliating targeting of specific religious groups, which is crucial, but they also increase the range of religious people potentially affected detrimentally.
Conversely, a neutrality policy would have little to no negative impact on non–religious employees. Being told you can’t wear a t–shirt with a political slogan will (in most cases) cause no way near the amount of pain that being told you can’t wear something you believe is necessary for you to gain salvation. Neutrality policies present secularity as the neutral option, but adopting secular dress and hiding religious symbols is not a common denominator that everyone feels able to access on equal terms. Secularity does not equal neutrality.[8]
Beyond this, the rulings create as many questions as answers. The ECJ has said that a ban on all symbols could be justified if the employer can demonstrate a genuine need to offer a neutral image to customers. But what would count as a genuine need, and how would an employer demonstrate this? Would it take the threat of a full–scale boycott of our fictitious café to justify introducing a ban on symbols, or could employers get away with saying they are worried about losing just a handful of customers? Wanting to present a secular image assumes that people manifesting their religion visibly are imposing their beliefs on others, or are unable to offer an impartial service – but that is hardly the case. The Court could have said that indirect discrimination against religion or belief can only be justified in narrow circumstances; instead, those circumstances are left quite wide.[9]
Moreover, while the ECJ has made clear that a particular religious symbol like the hijab can’t be banned just because customers ask for it directly, it has also confirmed that employers can justify a general neutrality policy based on the (assumed) preferences of customers. This still leaves the door open for employers to introduce a ban on all symbols based on the assumption their customers are Islamophobic. Islamophobia would still lead to Muslim women being forced to unveil, or forced into accepting substitute, non–customer facing roles irrelevant to their qualifications (since the court suggests such an arrangement could be a legitimate alternative). But hiding your religious minorities in a back room is hardly good for equality and integration.
These legal cases also show that it remains easier to discriminate on grounds of religion or belief than other protected characteristics. It would undoubtedly be unlawful for employers to remove people from customer–facing roles because their customers don’t want to be served by someone who is black, or disabled, or a woman – but it could be possible to do that to a religious person who refuses to comply with a neutrality policy. The difference arises from the common assumption that beliefs (religious or others) are choices, and thus are less deserving of legal protection than characteristics that cannot be chosen, such as race. In reality, of course, they often involve both choice and lack of choice; we don’t have full control over what we believe. It is this chosen–unchosen quality to religion or belief that makes it so hard to handle in law.
Ultimately, the ECJ’s recent and 2017 decisions are still a step forward from the pre–2017 situation; the most explicitly prejudiced attempts to ban religious symbols in the workplace have been declared unlawful. But that may be of little comfort to those people who deeply believe that wearing particular clothing or symbols is required to adhere to their religion, and who are forced by neutrality policies to choose between their job and their faith. With Islamophobia on the rise across Europe and globally, more and more employers will face dilemmas like our café owner; after this ruling, many will feel free to choose business interests over religious freedom.
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To read Simon’s other writing for Theos, click here.
