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
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
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
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.