This ruling by the European Court of Justice (ECJ) – not to be confused with the European Court of Human Rights (ECHR) – on the wearing of headscarves by Muslims at work, raises some serious legal and political issues.
Beyond the catchy headlines, there are so many nuances to the ruling that it would certainly be naïve to believe that the headscarf is now going to be banned by employers in the UK. In fact, the ECJ ruling is a response to a request for clarification by the Belgian Courts on whether under EU law, it constitutes direct discrimination to prohibit the wearing of religious, political and philosophical symbols at work resulting from an internal rule at a private company (G4S). So to this very specific question, the ECJ ruled, no, if applied across the board to all religious, political and philosophical beliefs.
However from the perspective of anyone who is legally literate, the ECJ seems to be performing legal acrobatics to justify a conclusion which makes little sense. The Court limited itself strictly to the question of direct discrimination, when the more substantive matter was the freedom of religion. The Muslim receptionist, Ms. Achbita, had chosen to wear the headscarf as part of her religious beliefs, part way through her employment. Her issue was not that she was being treated differently from her colleagues, who may have held other religious, political or philosophical beliefs, but that she was not being allowed to express her religious identity and be availed the opportunity to continue her work. One can sense the guilt in the ruling at having raised, but then glossed over this matter, when it leaves the possibility open of there being indirect discrimination resulting from the rule.
The ECJ also dealt poorly with the issue of having a legitimate reason for the rule. They limit their determination to the fact that Ms. Achbita was in a client-facing role, implying that the employer may legitimately be apprehensive of clients’ negative perceptions to an employee’s manifestation of religious, political or philosophical beliefs. In the case of Ms. Bougnaoui in France, where her employers dismissed her after a client complained regarding her headscarf, the same Court ruled that it was not a valid ground for her dismissal. The distinction and explanation once again comes across as contrived and relying on technicalities. Ms. Achbita was required to comply with a pre-existing internal rule, while Ms. Bougnaoui was dismissed as a reaction to a client’s preference.
Even the flawed idea of having to comply with a pre-existing internal rule is problematic on its own merits. At the time Ms. Achbita raised the prospect of wearing a headscarf, the rule was an unwritten one and only became formalised through an amendment to G4S’s workplace regulations after she had begun to work with the headscarf.
Discussion of how certain manifestations of religion in client-facing roles may hamper a business is scant. How does the wearing of a headscarf or the parallel of a Sikh turban or a crucifix necklace effect business, which in this case is a private security company? Can religious affiliation not be inferred from other factors such as name, ethnic or national identity or certain behaviours? Should such employees be given neutral names and would not they inadvertently end up being western Christian ones?
Proper reference to ECHR and international law jurisprudence on freedom of religion would have shone light on the principle that the freedom to manifest one’s religion may only be limited by compelling public policy grounds and in a proportionate manner. The ECJ once again avoids these considerations by deferring such questions to the national courts.
Some insight into the status of the practice in the said religion would also have been instructive. For example, the Muslim headscarf and the Sikh turban are considered by those who wear them as immutable and mandatory aspects of their religion. If an employer insists on their removal, the employees will almost always choose to resign. If not, they will comply but with their religious identity and hence their human dignity severely dented.
The most problematic aspect of the ruling is that it politicises religion. The case at its core, if the reasons for the internal rule were genuine, is about policing women’s clothing rather than their religion. The Court refers to the garment in question as an ‘Islamic headscarf’. What makes a headscarf ostensibly Islamic is beyond any reasoned intellectual enquiry, especially if contact with a client lasts a matter of minutes. The policy on the prohibition of ideological symbols also implies that if a staff member wore a headscarf as a matter of stylistic preference, the company would have no qualms with it.
From the perspective of women’s rights and their freedom to choose their identity and clothing, the rule certainly discriminates against those who happen to do it for a religious reason. There is a similarity here with the case of the receptionist at Ernst & Young in London, who was sent home by her agency, for refusing to wear high heels, it was widely seen as ridiculous and sexist. One woman was asked to leave her headscarf at the door, while the other was penalised for choosing not to wear high heels. What if a receptionist had to undergo chemotherapy and wore a headscarf to conceal hair loss, would she be asked to leave their job? Would she be forced to wear a wig?
Unfortunately, such flawed rulings are only going to increase. While absolute judicial independence is a noble and worthy principle, both the ECJ and the ECHR cannot operate in idyllic vacuum, unaffected by the political winds in their respective member States. A troubling shift towards populist politics has given the right and the far-right momentum and nationalist narratives shun the pan-European identity. The ECHR ruling in SAS v. France was another example of this. The Court upheld the general prohibition on the face-veil on weak grounds of pursuing a legitimate aim of encouraging social cohesion, which was difficult to tally with the conventional four public policy grounds. To take such a myopic view and defer to national political forces, such Courts in the long term undermine their moral authority and legitimacy in being bastions of fairness and justice, blind to political influence and intimidation.