Last month the European Court of Justice (ECJ) issued two judgments that led the mainstream media to proclaim that “employers can ban headscarves”.
The headlines were overly simplistic. Workplace policies requiring staff not to wear any clothing or symbol of a religious, political or philosophical nature are allowed, but must meet a set of criteria, and only national courts can decide whether these are met. What is of great concern from the point of view of human rights is the guidance that the ECJ gave to national courts to make these decisions.
In the first case, Achbita v G4S Secure Solutions NV, the ECJ ruled that it is the Belgian court that referred the case must decide whether it had been legitimate to dismiss the employee, Samira Achbita. She had not complied with a demand from her employer, security company G4S, to work without a headscarf. The company alleged that she had been informed of its policy requiring ‘neutral’ clothing from the beginning of her employment.
The ECJ’s guidance to the national court is very troubling. It suggested that a company’s objective of presenting a ‘neutral’ face to the public can be used to justify restricting an employee’s freedom of religion or belief, and that this policy’s negative impact on employees’ rights can be acceptable as long as it applies only to staff who work directly with the public.
The problem here is that under international human rights conventions, which all European Union member states have signed up to, a desire for neutrality is not acceptable as a justification for restricting the right to freedom of religion.
“Is it not important for young people of all identities and faiths to see people like themselves as role models in visible positions in society?”
In our diverse and cosmopolitan societies, who decides what is neutral and what is not? Could the company have considered an alternative form of neutrality that would comply with human rights – a policy where all displays of religious and cultural identity, and none, are welcome? If the policy is to exclude entire sectors of society from a range of jobs, doesn’t it become the opposite of neutrality? Some customers might think so, if they knew about the policy. But the ECJ was concerned only with the outward image of the company: excluding people is allowed, as long as this exclusion is hidden from sight.
By arguing that G4S’s policy may be acceptable because it applies only to public-facing staff, the ECJ appears to be saying that it is acceptable to limit employment and career options for a significant sector of our societies – particularly Muslims, Sikhs and Jews. Muslim women in particular already face significant discrimination in access to employment.
On this point, the answer of the court’s Advocate-General (whose opinion formed the basis of the Achbita judgment) is that people can simply choose not to wear religious clothing to work. Samira Achbita, she argues, demonstrates this because she “opted” not to wear a headscarf when she started work at G4S. This flies in the face of decades of human rights case law, which requires freedom of religion or belief to be protected, including its manifestation in public. It also fails to take account of the ‒ sometimes profound ‒ changes in religious belief and practice that people can undergo during their lifetimes.
Achbita herself refuted the idea of wearing a headscarf being optional through her actions – she chose to lose her job rather than the headscarf (as did Asma Bougnaoui in the second ECJ case, Bougnaoui v Micropole S.A., where the Court ruled that a French company was wrong to require an employee not to wear her headscarf on the grounds that it had made a customer feel uncomfortable). This is a choice that non-religious people, or people who do not feel their faith requires religious clothing, do not have to make.
“It is deeply troubling that the proposed solution to the neutrality ‘problem’ is to make diversity invisible”
Crucially, it is fair to ask whether calls for neutrality might simply mask intolerance of Muslims and other minorities – by customers or employers. The ECJ must not be blind to the rising tide of discrimination against Muslims in Europe and elsewhere, with people caught in an echo chamber of hate, between the outbursts and discriminatory executive orders of US President Donald Trump on one side of the Atlantic, and anti-immigrant, anti-Muslim politicians and commentators on the other.
The problem is multiplied for women from minorities, who are subject to criticism and regulation of what they wear and how they look. The furore over the clothing choices of Muslim women – be they headscarves, hijabs, full-face veils or burkinis – has been fuelled by misogynistic and xenophobic stereotypes.
Finally, it is deeply troubling that the proposed solution to the neutrality ‘problem’ is to make diversity invisible. Companies have been told that they cannot dismiss an employee based on the negative reaction of a customer, but all they need to do to avoid that situation is to bring in a blanket policy allowing them to consign all crosses, headscarves, kippahs and turbans to the back office – or not to offer the wearers a job in the first place. National courts can declare such policies discriminatory, but the ECJ’s guidance in the Achbita judgment does not encourage them in that direction.
Is it not important for young people of all identities, convictions and faiths to see people like themselves as role models in visible positions in society?
The EU proclaims pluralism to be one of its founding values in its treaties – but we have a right to question the message this particular judgment sends about the many identities that make up our continent.
IMAGE CREDIT: Ruud Morijn/Bigstock