Print Friendly and PDF
only search openDemocracy.net

The European Court has normalized 'Hijabophobia'

What did the European Court’s ruling of March 14 say in the case of Samira Achbita’s dismissal by G4S because she wanted to wear the headscarf to work?

Picture by Daniele Febei. Flickr (CC BY-SA 2.0). Some rights reserved. The European Court’s ruling of March 14 in the case of Samira Achbita’s dismissal by G4S because she wanted to wear the headscarf to work stated that:

“The prohibition on wearing an Islamic headscarf, which arises from an internal rule of a private undertaking prohibiting the visible wearing of any political, philosophical or religious sign in the workplace, does not constitute direct discrimination based on religion or belief within the meaning of that directive.”

Simply put, if a company prohibits religious signs from all religions, then the company is not guilty of direct discrimination.

On the other hand, the company can be guilty of indirect discrimination and it would be left for the referring court (Belgium) to ascertain if it can be shown that “the apparently neutral obligation it imposes results, in fact, in persons adhering to a particular religion or belief being put at a particular disadvantage”.

A policy of neutrality

The interest here is in the reason for which the prohibition of visibly wearing signs of political, philosophical or religious beliefs was justified. It was purportedly done “for the purpose of ensuring that a policy of neutrality is properly applied, provided that that policy is genuinely pursued in a consistent and systematic manner.”

Hijabophobia for the purposes of this discussion is the unfounded hostility towards the hijab, and therefore fear and dislike of all or most women who wear the hijab

By considering such a policy legitimate (par. 37 of the ruling), as falling under the “freedom to conduct a business” (par. 38), and by not challenging the notion that the hijab runs counter to a company’s (in this case G4S’s) desire to portray a “position of neutrality” (par. 13), the European Court has just normalized ‘Hijabophobia’.

If Islamophobia can be defined as unfounded hostility towards Muslims, and therefore fear or dislike of all or most Muslims, let us define Hijabophobia for the purposes of this discussion as the unfounded hostility towards the hijab, and therefore fear and dislike of all or most women who wear the hijab.

In other words, the court has given credence and legitimacy to notions that such public displays of Islamic faith by necessity cause the women wearing a Hijab to become holders of non-neutral, bias, prejudiced, and perhaps extremist beliefs. In brief, they become unreliable and untrustworthy.

These women are, according to such a mentality, submissive and dependent on their male masters who can control and manipulate their minds in such a way that, just as they now wear the hijab as a sign of submissiveness, they might carry out other unspeakable offences since they are not independent, they are not masters of their own choices, and they lack agency to make decisions on their own behalf.

How else can one read the justification of G4S’s dismissal of Samira on grounds of a company’s legitimate right to portray a “position of neutrality”, especially in light of the fact that the internal policies were revised on 29 May, 2006, after Samira had signaled her intent on 12 May to wear the hijab to the workplace, contrary to G4S’s wishes (see par. 10-16 of the ruling). Prior to that, there was only “an unwritten rule within G4S” and not a written policy.

What is neutrality?

Perhaps an example can make the point clearer.

When one speaks of neutrality, there is no denying that the International Committee of the Red Cross and Red Crescent is the ultimate example of an organisation that steadfastly and passionately defends its principles of humanity, impartiality, independence and ... neutrality.

Neutrality is defined as follows: “In order to continue to enjoy the confidence of all, the Red Cross may not take sides in hostilities or engage at any time in controversies of a political, racial, religious or ideological nature.”

Interestingly, the European Court uses the word “neutrality” without even a hint about the complexity and elusiveness of such a concept. Consider what the ICRC says in the introduction to its commentary on the fundamental principle of neutrality: “No idea in the Red Cross world has created more confusion than neutrality, for the word has a range of different meanings.”

Adopting the ICRC’s commentary since it sets the bar as high at it can get for an organisation, neutrality presupposes an “attitude of abstention” vis-a-vis belligerent parties, but it also does not negate an active stance when it comes to - in the ICRC’s mandate - helping the suffering individuals caused by the warring parties. To be neutral, there is a need for “real self-control; it is indeed a form of discipline we impose upon ourselves, a brake applied to the impulsive urges of our feelings.”

Interestingly, the European Court uses the word “neutrality” without even a hint about the complexity and elusiveness of such a concept

If we try to transfer this notion to the corporate setting, the idea of neutrality entails an “attitude of professionalism” when it comes to dealing with clients (and especially those with whom one might personally not agree) and an absence of conflicts of interest, as well as an active stance of being willing to do whatever is required to be successful at one’s job.

Can a person be both religious and neutral?

Obviously, G4S is not the ICRC and neither does it purport to be. The point here is the declaration and claim that its “position of neutrality” is the driving factor behind the dismissal of Samira.

The question is: does religiosity affect neutrality? That is, does the fact that a man or woman is a practicing Christian, Muslim, Jew, Buddhist, Baha’i, Za’idi etc. preclude the possibility of that same man or woman from being able to display the principle of neutrality in a professional non-religious setting?

The other question in the specific case of a Muslim woman who wants to wear the hijab becomes: will she do her job any differently if she is wearing a hijab or showing her hair?

The question is: does religiosity affect neutrality?

If the concern of a company is for neutrality, it is not clear how forcing a woman who prefers to be veiled not to wear it will result in a company’s “position of neutrality” being defended.

Indeed, the world is full of religious people in all types of “secular” professional positions in the public and private sector who are not doing a job on the basis of their religion or on behalf of it, and whose religion and personal faith is irrelevant to the job that they perform, regardless of whether they are wearing a cross or a hijab.

The point here becomes one of public perception. By claiming that the hijab affects the position of neutrality, and by having the Court accept this argument on perhaps justifiable legal grounds if the prohibition is applied in a consistent and systematic manner, the danger is that the notion itself of “neutrality”, and the relation of the “hijab” thereto, was not adequately discussed in order to properly explain the matter and to satisfy the reader who is trying to understand the rationale according to which the hijab is seen to be non-neutral by the company and by the court.

The ruling sends the wrong message

Such a ruling will, as Amnesty International has said, “give greater leeway to employers to discriminate against women – and men – on the grounds of religious belief. At a time when identity and appearance has become a political battleground, people need more protection against prejudice, not less.” More importantly, the rights organisation noted:

“by ruling that company policies can prohibit religious symbols on the grounds of neutrality, they have opened a backdoor to precisely such prejudice.”

Beyond the strictly legal aspects of the ruling, its social, cultural, and political consequences solidify the view among a growing number of Islamophobic individuals and groups that the hijab itself can never be trusted to be neutral in a professional setting.

Just wait until bakeries, petrol stations, restaurants, grocery stores start to apply internal policies prohibiting visible signs of religiosity in a European context where only those who would like to claim a false naivety will deny that such internal policies are in fact a ‘hijab ban’ aimed at the Muslim population within the climate that we are living in.

We want the exact opposite to take place: Islamic societies where non-Muslims can drink opposite a mosque and non-Islamic societies where Muslims can wear the hijab.

Such an opening for discrimination on grounds of religious dress will also undeniably affect all faith groups, which would explain why European rabbis denounced the ruling as sending a message that “faith communities are no longer welcome”.

At the end of the day, secularism should enforce the notion that all religions are welcome as long as no one, religious or non-religious, is discriminated against and as long as all are equal in front of the law in rights and responsibilities.

Denying the freedom of opinion and conscience on any grounds opens the door for similar violations of rights to be made in other parts of the world on the basis and justification of “internal policies” and “positions of neutrality”, each according to their own whims and preferences, or according to archaic religious interpretations.

One twitter user unabashedly said in approval of the Court’s ruling: “one shouldn't drink opposite a mosque in an Islamic society and one shouldn't wear a hijab in a Christian one”. However, we want the exact opposite to take place: Islamic societies where non-Muslims can drink opposite a mosque and non-Islamic societies where Muslims can wear the hijab.

About the author

Halim Shebaya is a Beirut-based analyst and researcher. He teaches in the School of Arts and Sciences at the Lebanese American University and has worked on social and political affairs for a number of local and international organisations. His articles have appeared in the World Post, Huffington Post, Al-Jazeera English, Jadaliyya, Legal Agenda, Annahar, Assafir, and Al Akhbar. He holds an M.Div. in Theology (NEST), M.A. in Middle Eastern Studies (SOAS), and an L.L.M. in Public International Law (Nottingham). Find him on Twitter @halimshebaya


We encourage anyone to comment, please consult the
oD commenting guidelines if you have any questions.