Hijab ruling poses thorny issue of legislation for all EU member states
An EU high court is once again grappling with the controversial issue of religious freedom and discrimination, ruling that employers can restrict religious symbols, like hijabs, in the workplace.
The EU Court of Justice has ruled that such rules are potentially discriminatory, but can be justified if the employer demonstrates that they are necessary and applied consistently to all symbols of religion or belief.
The decision came in response to two cases involving Muslim women in Germany. German courts had asked the EU court for advice on interpreting EU law which prohibits discrimination in employment.
In the first case, a childcare worker was penalized for wearing the hijab at work in violation of her employer’s policy that those caring for children and parents must adhere to a strict requirement of religious and political neutrality in order to ensure the “free development” of children.
The court noted that the employer only required neutrality from staff dealing with parents and children, so the rule did not appear to go beyond what was necessary. The employer also asked a Christian worker to remove the crucifix she was carrying, indicating that the rule was applied consistently.
In the second case, a saleswoman was sanctioned for wearing the hijab at work in violation of a rule prohibiting “conspicuous and large signs of any political, philosophical or religious belief”. Her employer said this was necessary to avoid workplace disputes that had arisen in the past.
Here the court had no more doubts. He noted that banning only âtall and visibleâ symbols risked the rule specifically targeting those whose beliefs require them to wear items such as scarves. A rule targeting symbols of one faith, he advised the national court, could only be acceptable in exceptional circumstances where neutrality is absolutely essential to get the job done.
The court noted that while EU law allows employers to maintain a policy of religious neutrality, it does not prevent individual member states from adopting more protective rules for religious freedom at work, restricting the rights of workers. employers to impose such obligations on their workers. German courts, which will now have to apply this ruling in individual cases, are therefore free to grant additional protection to religious freedom if they feel this is what the German constitution requires.
Religion and the workplace
There are two contrasting approaches for people of religious identities and different points of view to share a workplace. One is to protect the right of everyone to be fully themselves at work and to wear symbols of religion or belief if they so choose. The second path considers coexistence to be best achieved by requiring everyone to refrain from expressing their beliefs at work by adhering to a policy of visible religious neutrality.
Restricting religious symbols at work restricts the religious freedom of employees. Moreover, what is considered “neutral” in any society will bear the imprint of the history and culture of that society. Complying with a âneutralâ standard will likely be more difficult for minority groups.
Yet encouraging religious expression at work is controversial. Most of the mainstream religions have teachings on topics such as gender and sexuality that people can legitimately find offensive.
Commentators expressed disappointment in the European Court’s ruling, accusing the court of not taking religious discrimination seriously – and even of bowing to prejudice.
The regulation of religion entails particular difficulties. Religion is both about what you believe and who you are. It is difficult to protect religious identity without giving the impression of privileging religion over other forms of belief. If a religious employee can wear a crucifix or a hijab at work, can an atheist employee wear a âThere is no Godâ t-shirt? Can a vegan employee wear a sticker that says “Meat is Murder?” ”
Decision for the whole EU
In cases like these, the EU Court faces the delicate task of interpreting legislation that applies to 27 member states, all with different values ââand approaches to religious freedom. Since EU anti-discrimination law can only be changed with the agreement of each member state, if the court is wrong, the EU risks being stuck indefinitely with its interpretation.
In France, the approach has often been to seek coexistence by pushing people to retain the expression of religious identity in shared contexts. In the UK, by contrast, the approach has been to facilitate religious expression. Each approach has its detractors both on the law and the left.
Many in France see the French way of doing things as oppressive and exclusive towards minorities, and tainted with elements of colonialist thought. On the other hand, some in the UK feel that cohesion has been poorly served by approaches that emphasize religious differences.
Statistics on the best approach to produce mutual respect, friendship across religious lines and religious beliefs compatible with liberal democratic values are mixed.
With views so different among nations and no historical precedent, it would have been wrong for a multinational tribunal to decide that it had identified the ideal approach and would impose it on the 27 member states.
The European Court was right to allow States to continue to experiment with different ways of dealing with this situation. States that wish to encourage religious reluctance in shared contexts can do so. Those who wish to offer greater protection to religious expression at work can do so as well.
It was also fair to place some limits by ensuring that the bans did not target a single denomination. Too often in Europe secular principles have been cynically embraced by those with exclusionary agendas. Marine Le Pen’s National Rally, for example, seemed to discover a love for secular principles only after realizing that they could be used as a stick to beat French Muslims.
For a multinational court, faced with virtually unamendable legislation and a rapidly changing and unpredictable situation, that is about as much as it was prudent to do.