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ANALYSING ECJ’S 2021 PRELIMINARY RULING ON WEARING OF ISLAMIC HEADSCARF IN THE WORKPLACE
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ANALYSING
ECJ’S 2021 PRELIMINARY RULING ON WEARING OF ISLAMIC HEADSCARF IN THE WORK?PLACE
AUTHORED BY
- VAANYA SANGWAN
Introduction
Evidence from archaeology points to
the presence of religion and belief in human beings going back to the very
beginning of civilization[1]. Religion has a
multifaceted effect on morality and values. It moulds people's perspectives and
reactions to their surroundings, builds practices, and sets standards for how
we should dress and behave in daily life. Since a person's religion and views
are so deeply personal and significant to them, the state enacts laws that
safeguard their right to practice their religion freely and to express or
propagate their ideas.
However, this idea was challenged
when the ECJ passed a judgment, stating that an internal company rule
prohibiting the wearing of visible large symbols of political, philosophical,
and religious manifestations at the workplace does not constitute direct
discrimination on the grounds of religion or spiritual beliefs but rather such
prohibition is important to maintain state 'neutrality'. This decision sparked
outrage throughout the world, particularly among individuals and minority
communities that fell victim to the harsh outcomes of this ruling. However,
this debate regarding prohibiting individuals from wearing visible religious
symbols in public, state workplaces, or private corporations in order to uphold
the state’s agenda of secularity' is not new and has been there since France,
one of the EU member states, decided to ban headscarves in 2004, leaving a
feeling of fear and uncertainty among the women of the Muslim community.
What is
ECJ’s ruling all about?
The ECJ, or European Court of Justice
in Luxembourg, 2021, in the cases of WABE and MH Muller Handel, prohibited
wearing any visible form of expression of political, philosophical, or
religious beliefs in the workplace, which may be justified by the employer’s
need to present a neutral image towards customers or to prevent social
disputes. However, that justification must correspond to a genuine need on the
part of the employer, and in reconciling the rights and interests at issue, the
national courts may take into account the specific context of their member
state and, in particular, more favourable national provisions on the protection
of freedom of religion[2].
Before
dwelling on the consequences of this judgement, let us first understand the
facts of the cases:
·
In the cases of IX v. WABE Ev. and MH Muller
Handels GmbH v. MJ, IX and MJ were employed in companies governed by German
laws as special needs carers and a sales assistant and cashier, respectively,
and wore an Islamic headscarf at their respective workplaces. Taking the view
that the wearing of such a headscarf did not correspond to the policy of
political, philosophical, and religious neutrality pursued with regard to
parents, children, and third parties, IX’s employer, WABE eV, asked her to
remove that headscarf and, following her refusal, temporarily suspended her
from her duties on two occasions and gave her a warning. MJ’s employer, MH
Müller Handels GmbH, following her refusal to remove that headscarf at her
workplace, first transferred her to another post in which she could wear that
headscarf and then, after sending her home, instructed her to attend her
workplace without conspicuous, large-sized signs of any political,
philosophical, or religious beliefs[3].
Assessment of the court
Since the employer requested that no
visible religious symbols be worn by any employee, the court determined that
the regulation was enforced uniformly[4].
The court also considered whether the
employer's wish to maintain political, philosophical, and religious neutrality
with regard to its clients or users in order to respect their rightful wishes
may serve as justification for a treatment disparity that is based on religion
or belief and results from such an internal rule[5].
The court then established the
parameters for when the employer's pursuit of religious neutrality with respect
to the desires of its consumers may be justified, ruling that in this case it
was a legitimate aim. The European Court of Justice (ECJ) argued that an
employer's legitimate need is the only situation in which a justification for
treating employees differently on the basis of their religion or beliefs may be
considered objective. The court established the following criteria for
determining the existence of such a need: the rights and reasonable desires of
clients or users; in the context of education, in particular, parents' need to
have their kids attended over by professionals who do not publicly display
their religious or philosophical views[6].
Finally, the court ruled that the
distinction in treatment had to be made in order to guarantee that the
neutrality policy is appropriately implemented, meaning that it had to be followed
in an orderly manner. If there are serious negative effects that the employer
would wish to prevent, then it is appropriate to forbid employees from wearing
any visible symbol of their political, philosophical, or religious beliefs at
work[7].
The ECJ Headscarf Ruling: Why It Doesn’t
Make Legal,
Moral or Common Sense
The European Court of Justice passed
a judgement on two cases concerning the right of Muslim women to wear a
headscarf at work, or more accurately, the right of employers to prohibit a
Muslim woman from wearing a headscarf. Alarmingly, a court meant to protect the
rights of its citizens and allow them religious freedom, in its judgement,
allowed workplaces to discriminate against women by asking them not to wear a
headscarf. The very same court described such behaviour as non-discriminatory
in nature as long as it applies equally to all religious groups and is
regulated in a legitimate way. However, it does not change the fact that this
is discriminatory in nature and marginalises these women from minor communities
further from society.
·
First, and foremost it renders national and religion identity
incompatible: The
headscarf ban's detrimental effects involve depicting religion and national
identity as mutually exclusive. Since the majority of EU member states casted
themselves as "secular or religion neutral," it sabotaged
the very essence of the EU, specifically the national identities of its
members. We will examine the instance of France in order to have a better
understanding.
According
to Joan Wallach Scott, wearing a headscarf while practising Islam is considered
a "violation of French secularism, and by implication, a sign of the
inherent non-Frenchness of anyone who practised Islam" under French law[8].
French Muslim females were able to identify as belonging to both their nation
of birth (France in this example) and their religious group up until the
prohibition was implemented. Both of these identities, meanwhile, were seen as
irreconcilable after the ban, and one could not be French without completely
adhering to the secularity concept.
As a
result, some Muslim women choose to withdraw within their religious groups
after feeling alienated from larger French culture. In addition, the ban
scrutinised Muslim females to make sure they complied with the rule by
examining their conduct and religious identity after public interest in it
subsided. Thus, it is safe to assume the kind of identity crisis that a woman
faced after the ECJ’s judgement and the problems they faced with the 'moderation
of Islam’ and their choices[9].
·
Secondly, it does not make legal sense: It is
equivalent to asking someone to refrain from professing and preaching their
religion if you urge them not to wear a certain religious symbol at work or in
public. Every nation has laws in place to give its residents the freedom and
legal assurance to practise and spread their religion in a morally upright
manner. It violates their natural dignity and denies them their right to
freedom of choice to wear a religious symbol that is very personal and
represents the core of their religious concepts and beliefs.
I think the ruling by the
ECJ violates a woman's right to personal autonomy and freedom of choice.
Furthermore, how can the government control what is essential to a person's
faith and beliefs? Moreover, a woman who wears a headscarf, which is an
item of clothing, does not endanger the public interest or cause injury to
anybody else or restrict their ability to exercise their right[10]s.
if we look more closely, it appears that the ECJ is regulating what women can
choose to wear and what they cannot wear. It is deciding on their choice of
what they’re and who they want to be.
·
Educational and job disruptions: The ECJ's ban on Muslim women covering their heads in places
of employment or education has a negative impact on a woman's capacity to
complete her secondary education and denies them the chance to participate in
the labour force. During the 2004 French ban on headscarves, Vasiliki Fouka and
Aala Abdelgadir saw an occurrence of discriminatory culture in the schools that
had a negative impact on Muslim schoolgirls, disregarding whether or not they
wore veils and focusing more on their attire. Additionally, they discovered
that Muslim women impacted by the prohibition either had to repeat classes or
waited longer to finish their secondary education[11].
Following the ban's
enforcement, women had to attend school without the headscarf. If
they failed, they would be placed in mediation. And they were kicked out of the
schools in the event that the negotiations failed. They were therefore
compelled to abstain from donning headscarves, drop out of the education system
or switch to private schools and pursue distance learning, or worse, leave the
country[12].
These women's lives were
negatively impacted for a long time due to a delay in education or lack
thereof. They faced problems in entering the workforce, and if they did, they
were paid less, which widened the employment gap between Muslim and non-Muslim
women.
We may thus easily
envisage the identical or even more extreme experience that Muslim women in EU
member states would have, given that women in French society have already
testified about their experiences with the headscarf ban. As a result, the
ECJ's decision adversely affects their daily lives and might have a significant
impact on their futures.
EU as a secular power: A hoax
The term "secularism"
refers to a lack of religion or to the practice of placing religion apart from
politics, the economy, and society. When a state is considered secular, it
signifies that it is neutral towards religion and does not have an official
religion. Europe is typically thought of as the cradle of secularity, but is
this actually the case, or is this just the narrative the EU has been selling
to us? In an interview with Religion & Diplomacy, Sarah Wolff stated that
while secularism in the European context takes on various forms in each of the
EU's member states, it is typically linked to the Treaty of Westphalia, the end
of religious conflicts, and occasionally the European Enlightenment[13]. She goes on to say that secularism
is becoming more and more politicised in Europe. She uses France as an example,
where laicité, or the public religion, has a history of being strongly linked
to the marginalisation of some religions, most notably Islam. Islam has always
been viewed as requiring "moderation," so Europe has always had a
hostile relationship with it. This leads us to ask: Is the EU genuinely
secular?
State funding of
religion is the norm rather than a rarity in Europe. For instance, the Roman
Catholic Church has enormous influence in society since it gets over €10
billion annually in Germany, one of the founding members of the EU, to operate
hospitals, schools, and other facilities. A significant number of individuals
have chosen to opt out of the tax due to a reduction in religiosity, which is
something they are legally allowed to do. However, the Roman Catholic Church is
playing hardball, requiring payment of the fee as a condition of church
membership: no tax, no communion, no church funeral. Ultimately, the church
could never demand such a large amount of money from its members if it were
left to manage itself rather than having the government gather their
"voluntary" contributions on their behalf. In the same way, Greece
finances the church buildings and the education, salary, and pensions of Greek
Orthodox clergy. Italy is another example. Despite Italy's constitution
declaring it a secular state, the Italian Unione degli Atei e degli Agnostici
Razionalisti has calculated that the church receives €6 billion annually from
the Italian government[14].
So, is state
neutrality actually a thing in the EU? All of the aforementioned instances
demonstrate how the EU retains Christian principles even if it bills itself as
a secular modern state. With the passage of their 1905 legislation of
separation, the French claimed to have completely separated the church and
state. However, because of the Roman Catholic Church's cunning operations, the
state ended up owning all of its churches at the time and has maintained them
for the Church at no cost, amounting to an annual subsidy of €100 million[15].
They may now demonstrate separation between the church and the state because
the concept of laicité has been ingrained in the French system, but that
doesn't mean we can ignore the reality that their policies have included the
ruthless repression of minority populations.
One idea based on secularism requires
it to be a passive prerequisite of neutrality, in which the state has no active
participation in religion, which adds to the idea of a secular state. This
implies that the state is expected to be religion-neutral, not the citizens.
The second idea of secularism holds that there should be no religious
expression in any public environment, meaning that the government should remain
impartial and refrain from actively encouraging religion[16]. The EU court, however, fails to
fall under any of these categories. For instance, the Grand Chamber in the Lautsi
case skipped over whether having a crucifix in a classroom is consistent
with secularism. The Grand Chambers of the ECHR saw the crucifix as a neutral,
passive symbol that is not subject to indoctrination. The headscarf case,
however, centred on the notion of secularity and the requirement that
institutions of religion be kept out of public spaces. This demonstrates that
the Grand Chamber did not view the crucifix and its connection to Christianity
as contradictory to the idea of secularity that the EU is trying to preach. So,
we may conclude that the political theology of a Christian democracy, rather
than the framework of rationalist secularism, is the foundation upon which the
EU is constructed[17].
Conclusion
In conclusion, the paper delved into
a critical examination of the intersection between religious expression,
secularism, and state neutrality, particularly in the context of the European
Court of Justice (ECJ) rulings on conspicuous religious symbols like the
headscarf. The Courts are considered to be the guardian of the law; thus, they
need to work in a manner that they do not cause identity threats to an
individual on the basis of their religion and to make sure that no individual
has to jeopardise national identity for religion identity or vice versa. The
Court's also need to analyse the implications of what their rulings might cause
to religious freedom, national identity, and the potential risk of further
marginalising an already minority community. For instance, the adverse effects
caused by ECJ's ban on visible religious symbols on education and employment
opportunities for Muslim women are underscored, with evidence of the bans
leading to educational disruptions and employment gaps.
We can also contend that the idea of
state neutrality in the European Union may be false, suggesting that underlying
Christian influence persists despite claims of secularism, highlighting the
existence of deeply rooted 'European Culture' in the minds of the people of
Europe. This idea helps us realise that policies and laws are made based around
the very idea of 'European Culture'. The analysis provided a thoughtful
examination of the complex dynamics between religion, secularism, and
individual rights in modern European society, ultimately leaving us with
questions about the EU's commitment to secular principles and the effect of
such rulings on the lives and identities of its citizens.
[1] Porsson B, ‘Religious dresses and
symbols: are religions treated equally by The European Court of Human Rights’
(2016) accessed 5 November 2023
[2] ‘Court of Justice of the European
Union Press Release No 128/21 –curia’
accessed 3 November 2023
[3] ‘Court of Justice of the European
Union Press Release No 128/21 –curia’
accessed 3 November 2023
[4] ‘Court of Justice of the European
Union Press Release No 128/21 –curia’
accessed 3 November 2023
[5] ‘Court of Justice of the European
Union Press Release No 128/21 –curia’
accessed 3 November 2023
[6] ‘Court of Justice of the European
Union Press Release No 128/21 –curia’
accessed 3 November 2023
[7] ‘Court of Justice of the European
Union Press Release No 128/21 –curia’
accessed 3 November 2023
[8] Abdelgadir A and Fouka V, ‘France’s Headscarf Ban:
The Effects on Muslim Integration in the West ’ (The forum , 14 May 2019)
[9] Abdelgadir A and Fouka V, ‘France’s Headscarf Ban:
The Effects on Muslim Integration in the West ’ (The forum , 14 May 2019)
[10] Bhatti S, ‘The ECJ Headscarf Ruling: Why It Doesn’t
Make Legal, Moral or Common Sense’ (The Review of Religions, 20 September 2019)
[11] Feder S, ‘Stanford Scholars Report French Headscarf
Ban Adversely Impacts Muslim Girls’ (Stanford Humanities and Sciences, 25
August 2020)
accessed 3 November 2023
[12] Feder S, ‘Stanford Scholars Report French Headscarf
Ban Adversely Impacts Muslim Girls’ (Stanford Humanities and Sciences, 25
August 2020)
accessed 3 November 2023
[13] Birdsall J, ‘Europe as a Secular Power: An Interview
with Sarah Wolff’ (Religion & Diplomacy, 6 October 2021)
[14] Pollock D, ‘Secularism in Europe’
(Thinking about Humanism)
[15] Pollock D, ‘Secularism in Europe’
(Thinking about Humanism)
[16] Porsson B, ‘Religious dresses and
symbols: are religions treated equally by The European Court of Human Rights’
(2016) accessed 5 November 2023
[17] Porsson B, ‘Religious dresses and
symbols: are religions treated equally by The European Court of Human Rights’ (2016)
accessed 5 November 2023
Article Information
ANALYSING ECJ’S 2021 PRELIMINARY RULING ON WEARING OF ISLAMIC HEADSCARF IN THE WORKPLACE
Authors: VAANYA SANGWAN
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/12/27
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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