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Neutrality & Acceptance – European Court of Justice’s Upholding of Workplace Bans on Headscarves

Neutrality & Acceptance – European Court of Justice’s Upholding of Workplace Bans on Headscarves

Last updated on: March 15, 2017 at 2:08 pm by Dilshad Ali

Neutrality & Acceptance – European Court of Justice’s Upholding of Workplace Bans on Headscarves 2017-03-15T14:08:08-04:00 Dilshad Ali

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Photo of my friend Zainab Chaudry of CAIR National at a protest march. Image source: Zainab Chaudry

It’s interesting, to me at least, that early this week I sat on a panel on “Fueling Hate: The News Media, Bias and Islam” at the University of Missouri’s College of Journalism and declared that there are stories that many Muslims (journalists and otherwise) feel they are done, done, done with – one of which includes articles on hijab, headscarves, burkas and other types of modest Muslim dressing.

And yet here we are, because the legislation and policing of “religious clothing” — often directed towards the headscarf, niqab (face veil) and other forms of clothing many Muslim women wear but inclusive of many types of religious garb — is something that continues on a daily basis. So it doesn’t matter if I’m done with this story. Because this story refuses to be done with us as long as there are laws and countries that pass judgment on what Muslim (or anyone for that matter) women (and men) are required to wear or are banned from wearing.

In response to the case of a receptionist fired for wearing a headscarf to work at a security company in Belgium, the European Court of Justice (ECJ) has just ruled (in its first ever such ruling on headscarves and religious garb in the workplace) that workplace bans on the wearing of “any political, philosophical or religious sign” (like the headscarf) “need not” constitute discrimination.

Need not.

The ECJ goes on to further say that any workplace ban on dress must be based on internal company rules that requires employees to “dress neutrally” and not based on the wishes of a customer.

Bans on face veils, burkinis and headscarves is hardly new in many European countries, from policing of skirts in France to German Chancellor Angela Merkel saying the face veil should be banned “wherever legally possible” to last summer’s fever pitch of public outrage over the mayor of Cannes banning the burkini (full coverage swimsuit) on its beaches (26 French beach towns and cities followed suit), which was later overturned by France’s highest administrative court, the Conseil d’Etat.

The case that sparked this court ruling dates back to 2006, according to this BBC article:

The ECJ was ruling on the case of Samira Achbita, fired in June 2006 when, after three years of employment, she began wearing a headscarf to work.

She claimed she was being directly discriminated against on the grounds of her religion and Belgium’s court of cassation referred the case to the EU’s top court for clarification.

At the time of Ms Achbita’s hiring, an “unwritten rule” had been in operation banning overt religious symbols, and the company subsequently went on to include this explicitly in its workplace regulations, the court explained.

So, the question now is does this ruling only apply to headscarves and other forms of Muslim dress? According to the court, if a company has such a “neutrality” ban in place that bars employee from religious, political or philosophical garb (what that last part means is anyone’s guess), the policy must include all types of religious clothing, like turbans, crucifixes or kippas. Basically, the court is upholding an employer’s “desire to project an image of neutrality towards both its public and private sector customers.”

But this is where I have questions – why is something like a headscarf or a kippa or a turban something that takes away from neutrality? What does that even mean? If a customer deems that, say, a headscarf worn by an employee or small cross necklace violates their sense of neutrality, then too bad for the employee?

According to the ruling, a customer complaint (or rather, “subjective considerations”) cannot justify banning an employee’s clothing. Says the court: “The willingness of an employer to take account of the wishes of a customer no longer to have the services of that employer provided by a worker wearing an Islamic headscarf cannot be considered a genuine and determining occupational requirement.”

Ok then.

However, if a company has some sort of “neutrality dress” requirement for their employees, they can effectively bar an employee from wearing a headscarf, kippa or any religious, political or philosophical clothing (still trying to figure out that last one). But this still brings up a lot of questions for me. For example, if a Sikh employee wears his hair in under a cap or in a different style instead of a traditional turban, would that be in violation of said requirement?

Back in 2013, the Canadian province of Quebec proposed the “Charter of Quebec Values,” which aimed to prevent people working in the public sector from wearing “conspicuous religious symbols,” including headscarves, face veils, kippas, turbans, and large crosses. Of course there was a large amount of backlash to counteract the support the charter received. Again, the question of neutrality in dress was what captured our attention. Wrote Krista Riley in Muslimah Media Watch:

When the government representatives talk about getting rid of religious symbols in order to preserve the “neutrality of the state,” it’s people like these women who will be affected, and bodies like theirs that will be left out of the image of the state created within the new charter and “our values.” And in the process, the state – instead of separating itself from religion – is inserting itself into the religious decisions of its individual citizens, claiming that that it knows better than that do which clothing they should be wearing, and telling women that they are not welcome to work in this province without removing certain articles of clothing. This is neither a religiously neutral nor a pro-woman charter.

The implications of the ECJ’s ruling will play out in the coming weeks and months. Many people who have protested and written against the wearing of the headscarf, face veil (arguing it is not required by Islam) may see this as a positive step in the secularization of Europe. But to me, that argument is not what is at stake here. As writes one of my bloggers, Alan Howard, “This is terrible and harkens back to the 1930s in Europe, when Jews were not allowed in some places to wear kippahs or zitzit or other outward show of their Judaism.”

I’ve worn a headscarf for about 14 years now — freely and unobtrusively in and about my professional work, travels, volunteer work and reading, chaperoning and tutoring gigs at my children’s (public) schools. If we can’t maintain a sense of neutrality and acceptance in the different ways we dress and adhere to our faiths, then what does that say about our ability to peaceably and pleasantly interact with each other as humans?

European Court of Justice

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