Discussion in Europe about the legitimate limits to religious expression in secular states has become increasingly hysterical in recent years.
Two unreasonable strands of opinion have emerged in debates ‒ on the one extreme, a demand that even religious expression that is harming no one should be suppressed on the grounds that it is offensive to traditional culture; on the other extreme, a demand that all expression should be allowed on the grounds that the right to practice a religion trumps all others. Most people are between these two positions but, in the context of a mainstream media that ignores nuance, it may be hard to hold this middle ground.
This difficulty was made clear by the reaction to the recent European Court of Justice (ECJ) decisions regarding employer rules on religious symbols in the workplace. Despite the ruling, which was made on employment equality law, being held up as a victory for the far right and a defeat for the left, the ECJ did not allow employers to ban religious symbols in the workplace. The Court did not make a final decision on the case but said it was up to the French and Belgian courts to ultimately decide.
Indeed, the ECJ ruled only that a blanket ban on religious symbols does not constitute direct discrimination on equality grounds (which is correct), but made no final decision on indirect discrimination.
Even if the French and Belgian courts decide that such a ban does not constitute unlawful indirect discrimination on equality grounds, the case still only pertains to equality law. Human rights law also legally protects employees. In the Eweida case in 2013, the European Court of Human Rights ruled that an airline employee, Nadia Eweida, should be able to wear a cross round her neck, and that uniform is not a good enough reason to prevent this. In other words, such an approach to banning religious symbols constitutes indirect discrimination under the European Convention on Human Rights.
“Europe is becoming more diverse, and at a time of such increasing diversity, misguided media debates are extremely unhelpful”
So the widespread media headlines stating that the ECJ has ‘allowed employers to ban headscarves’ was completely inaccurate. This was also the conclusion of the United Kingdom’s national human rights institution, the Equality and Human Rights Commission (EHRC), but it was completely at odds with the general media take on the case.
Part of the issue comes from the ECJ’s press release on the subject, which was extremely confusing. Nowhere does it explain the difference between direct and indirect discrimination. It starts off making clear that such a ban on religious symbols ‘does not constitute direct discrimination’. It gets to indirect discrimination only at the bottom of page two. So it is not surprising so much of the media got it wrong.
Europe is becoming more diverse, and at a time of such increasing diversity, misguided media debates such as this one are extremely unhelpful.
Those concerned with growing anti-Muslim sentiment understandably took the misleading headlines as a sign of further intolerance against Muslims, while those on the far right used it to continue to disparage Muslims and their visibility in society. In other words, the headlines unhelpfully caused polarisation on all sides.
Several steps should be taken to avoid the problems we now face.
First, specifically regarding legal rulings, courts need to work to ensure that any summaries of their decisions are clear and do not use undefined jargon that some journalists may misunderstand. European courts could consider sharing their decisions with trusted national human rights institutions ahead of their announcement so that these bodies can help ensure that any decisions are properly understood and interpreted in the diversity of domestic contexts that exist around Europe.
“Those concerned with growing anti-Muslim sentiment understandably took the misleading headlines as a sign of further intolerance against Muslims”
Second, the media should ensure that they have expert legal input before rushing to print, and that staff have proper training in equality and human rights legislation.
With respect to the UK, the EHRC has published a five-point plan – ‘Healing the divisions: a positive vision for equality and human rights in Britain’ – that emphasises the need to avoid rolling back our equality and human rights framework. We must also work to ensure that through education and the media, people come to better understand the range of religious and non-religious beliefs that are common in the UK today. While people may disagree with others’ religions or beliefs, and seek to limit the manifestation of such beliefs when they cause harm to others, this should not extend to prejudice or hatred of different individuals because of those beliefs.
An unfortunate consequence of the Brexit vote has been that a minority of people have since then been using it as an excuse to exercise prejudice against others, with official statistics showing a jump in hate crime in recent months. Even going beyond that, the vote has caused wider division between ‘Leavers’ and ‘Remainers’, and there are concerns that the UK’s departure from the EU could lead to our equality and human rights legal framework coming under threat.
If we work hard, together, we can seek to ensure that the United Kingdom and the European Union continue to uphold equality for all ‒ regardless of religion or belief ‒ in an increasingly pluralistic, yet secular, society. This is an end we all need to commit to.
IMAGE CREDIT: Angelstorm/Bigstock