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Can banning the headscarf be indirect discrimination?

A European Court of Justice (ECJ) ruling allowed employers to ban their workers from wearing a headscarf as part of a company 'neutrality' policy.

Lan Rasso. Flickr / Some Rights Reserved

On 14 March, the European Court of Justice (ECJ) ruled that companies can ban their employees from wearing the headscarf as long as it is part of a company ‘neutrality’ policy which requests staff to dress ‘neutrally’. The court stated that this ruling did not constitute direct discrimination against any particular religion or belief as all visible religious and political symbols must be prohibited under the regulation. On the surface, the ruling seems to be a positive case for the equal treatment of staff in the face of a controversial issue. However, in analysing the rationale, it becomes evident that the pursuit of neutrality in this case, is, in fact, violating the right to freedom of religion and belief, a fundamental human right.

The ruling is violating the right to freedom of religion and belief, a fundamental human right.

Although the judgement does not constitute ‘direct discrimination’, the court stated that it may constitute ‘indirect discrimination’ if people of a particular faith are put at a disadvantage. Prohibiting the Islamic headscarf, often seen as a Qu’ran-instructed obligatory garment although there is some debate here, in contrast to the cross or the crucifix, certainly seems to suggest ‘indirect discrimination’. The court, on the other hand, argued that indirect discrimination is permissible if it is justified by a legitimate aim i.e. neutrality, providing that the means of achieving the aim are necessary and appropriate.

Two questions must be asked here. The first is whether the right to freedom of religion and belief, a right enshrined in the Universal Declaration of Human Rights (UDHR) and the International Covenant of Civil and Political Rights (ICCPR), which permits the wearing of religious symbols, can be limited to preserve ‘neutrality’. If this is the case, then the second question which follows is whether outlawing all religious and political symbols is a necessary and appropriate means of achieving neutrality.

According to Article 18 (3) of the ICCPR, limitations to freedom of religion and belief must be prescribed by law and necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others. Aiming to preserve neutrality amongst staff is certainly not in aid of protecting public safety, order or health, and is only tenuously linked to protecting public morals. Preserving neutrality could be used, however, as justification for protecting the fundamental rights and freedoms of others if those freedoms were obstructed by bias or prejudice. However, this brings us to the second question: are the means of achieving the aim necessary and appropriate?

Visibly banning all political and religious symbols in the pursuit of neutrality is neither necessary nor appropriate.

It implies that a Muslim who wishes to wear a headscarf or a Christian who wishes to wear a cross are in some way not neutral, and are therefore disrupting the neutrality of a company. On the contrary, everyone holds their own individual beliefs and opinions which would make them ‘partial’, and everyone has the right to manifest these.

Furthermore, since these symbols in no way constitute bias nor prejudice and therefore do not obstruct the fundamental rights and freedoms of others, prohibiting visible religious and political symbols as a way of preserving neutrality is unjustifiable. In light of this, although the policy of neutrality itself might be seen as a legitimate aim and even as a possible limitation on freedom of religion, the ban on visible religious and political symbols is neither a necessary nor appropriate means of achieving this aim.

In conclusion, the ruling that companies can ban their employees from wearing the headscarf as long as it is part of a company ‘neutrality’ policy, is a violation of freedom of religion and belief, a fundamental human right. Moreover, in the context of European elections where right-wing parties are latching on to issues of immigration, integration, and identity, this judgement will only exacerbate already existing tensions between Europe’s Muslim and non-Muslim communities.

The perceived view that religious belief and its manifestation is at best incomprehensible and at worst incompatible with European values is already noticeable at the local and the national level. Now it seems to have permeated the European level. It is time that we stop treating the right to freedom of religion and belief as a second class right and acknowledge it as a right equal to and fundamental to all other human rights.

About the author

Lucy Anns has two degrees in International Relations and European Studies. She currently works for Christian Solidarity Worldwide, a human rights organisation specialising in freedom of religion and belief, as an advocacy and research assistant in the Brussels office.

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