Once again, the European Union’s highest court has enabled discriminatory practices in the workplace that predominantly target Muslim women.
Returning to the question of religious dress in private employment after its controversial ruling in 2017, the EU Court on Thursday granted private employers the right to dismiss employees for wearing “any visible sign of their political, philosophical or religious beliefs” in the workplace.
While in 2017 cases revolved around a French and Belgian Muslim woman dismissed because of their headscarf, Thursday’s judgment was about two German Muslim women. A special-needs caregiver and a pharmacy cashier, both faced dismissal for wearing headscarves at work. The German national courts referred the cases to the EU Court of Justice (CJEU), urging it to reconsider its stance on the application of EU anti-discrimination law in such cases.
The CJEU upheld the employees’ treatment as justified if the employers’ goal is “neutrality,” adding also the wish to “prevent social disputes”.
This begs the question: whether anti-discrimination law is to protect the Muslim women who face dismissal because of their faith, or the employers, customers and now also other employees whose profits might be impacted or sensitivities offended by having to work with a Muslim woman?
The ruling fails to mention the backdrop of increasing Islamophobia across Europe. In fact, public debates vilifying Muslim women because they wear a headscarf have been taking place for decades. Most recently, a Muslim woman with impeccable qualifications resigned after having just been assigned a post as government commissioner at the Institute for the Equality of Women and Men (IEFH) in Belgium because her headscarf caused outrage. In France, Macron’s own party rejected a Muslim woman who wanted to stand for elections because she appeared on a poster with a headscarf.
Though these debates are accompanied by religious dress bans that present themselves as allegedly “neutral,” they are clearly meant to target Muslim women. Despite preaching equality, some EU member states have been dictating what Muslim women should wear for years. France, a leader in Europe on this issue, banned religious dress in public schools in 2004, and in 2016 adopted an amendment to its labour law to allow private employers to ban religious dress in the name of neutrality. In April this year, the French Senate voted to ban girls under the age of 18 from wearing headscarves in public places, and it is also set to bar headscarf-wearing mothers from joining their children on school trips. These cruel and draconian measures are dehumanising Muslim women and girls.
The court also established that an employer must show their business would be undermined or that there would be adverse consequences without these restrictions on religious dress. Compared to the 2017 ruling, these are important protections, that the court then weakens by concluding that the “genuine need” for a headscarf policy is met if customers express such a wish. Muslim women’s right to work is left to the whim of prejudiced persons, which is exactly what the law is supposed to protect against.
The push for headscarf bans is often cloaked in language about feminism and emancipating Muslim women. We also hear a lot from politicians of all stripes about liberating women from oppression in the Middle East and yet, in the heart of Europe, laws have been implemented to completely sideline Muslim women from public life. Some proponents of these measures claim they are needed to counter growing ”religious extremism”. What is growing is the number of Muslim women who want to participate in the public space. This should be cause for celebration, but, instead, it is met by bigotry.
By permitting wide-ranging prohibitions on headscarves in the workplace, Muslim women’s visible presence is denounced. Already in Europe, Muslim women face an onslaught of both verbal and physical assaults. Just as the EU’s Fundamental Rights Agency and the Council of Europe are warning of rising racial discrimination and violence. This decision puts a target on Muslim women’s backs.
This judgment is a legal setback that follows a concerning trend in Europe: the more Muslim women try to take part in public life, the more rejection and hatred they face. National courts should continue to push back, expose the weaknesses in this ruling and refer new cases to the CJEU. Businesses should continue to show solidarity with their Muslim employees. There are some commendable employers, such as IKEA and H&M, who are already doing so and have not seen their reputation or profits negatively impacted as a result.
While it is just one court decision, what happens at the EU’s top court represents a crossroads for the continent as it attempts to fight its legacy of structural racism. On one side; those seeking to erase Europe’s religious diversity through discriminatory legislative efforts and attacks on fundamental freedoms. On the other side; people who recognise and value Europe’s diversity in all its forms and understand that plurality means nothing if it is not visibly manifested and protected.
Maryam H'madoun is a senior policy officer at the Open Society Justice Initiative (OSJI) in London, and a founding member of Baas Over Eigen Hoofd (BOEH), a Belgian feminist and anti-racist action platform, which stands up for the self-determination of women and girls to wear a headscarf.