Some are less equal

In a landmark ruling in a contentious case, the Court of Justice of the European Union has held that a prohibition on wearing any visible form of expression of “political, philosophical, or religious beliefs” in the workplace may give grounds for an employer to ask an employee to remove such “form of expression”, including the hijab, in a situation where the employer needs to present a neutral image towards customers or to prevent social disputes.

The CJEU went further to explain that justification must correspond to a genuine need on the part of the employer, not just a mere preference or desire, and in reconciling the rights and interests at issue, national courts must consider any provisions relating to the protection of freedom of religion. The decision, IX v WABE eV; MH Müller Handels GmbH v MJ (Joined Cases C-804/18 and C-341/19) (15 July 2021), sparked international public outrage, but what did the CJEU actually decide?

Two employee claims

The court heard joined cases brought by two Muslim women in Germany, one a special needs carer (A) and the other a beauty shop cashier (B), after they were each suspended for wearing an Islamic headscarf at their respective workplaces.

In A’s case, her employer, WABE eV, took the view that wearing a headscarf (or the hijab) did not correspond to its policy of political, philosophical, and religious neutrality. A was asked to remove her headscarf. Following her refusal to do so, WABE temporarily suspended her from her duties on two separate occasions and issued her with a series of warnings. A brought an action before the Arbeitsgericht Hamburg (Hamburg Labour Court) seeking an order that her employer remove, from her personal file, the warnings relating to her wearing a hijab in the workplace.

B’s employer, MH Müller Handels GmbH, also asked B to remove her headscarf. Following B’s refusal to do so, she was first transferred to another post in which she could continue wearing her headscarf, but was subsequently sent home and instructed to attend her workplace without any “conspicuous or large-sized signs” of any political, philosophical, or religious beliefs. B brought an action before the German courts seeking a declaration that that instruction was invalid, and compensation for damage suffered. Her claim was upheld, but her employer appealed the decision on a point of law to the Bundesarbeitsgericht (Federal Labour Court).

The national courts decided to refer to the CJEU questions regarding the interpretation of Directive 2000/78/EC, establishing a general framework for equal treatment in employment and occupation. In its judgment, delivered by the Grand Chamber, the court explained that articles 1 and 2a of the directive must be interpreted as meaning that an internal rule of an undertaking which prohibits workers from wearing any visible signs of “political, philosophical, or religious beliefs” at the workplace does not constitute, with regard to workers who observe a certain dress code based on religious precepts, direct discrimination on grounds of religion or belief, provided the rule is applied generally and without distinction.

Slightly misleading headlines

The essence of the court’s judgment is not quite as it appears in the tabloids, but nevertheless, it is potentially gravely dangerous, as the judgment could effectively exclude Muslim women from public life, or render them invisible.

Despite reasonable, and justifiable, outrage and criticism of the CJEU ruling, the court was faced with an incredibly difficult decision over two competing rights – whether the hijab prohibitions in the workplace represented a violation of the freedom of religion, or were allowed as part of the freedom to conduct a business and the wish to project an image of neutrality to customers.

The court considered that in A’s case, while the factual assessment was for the referring court, the rule appeared to have been applied in a general and undifferentiated way as her employer also required an employee wearing a religious cross to remove it. In such circumstances the rule would not constitute direct discrimination on the grounds of religion or belief.

The court then examined whether the rule amounted to indirect discrimination on the grounds of religion or belief. It pointed out that such a prohibition was liable to have a much greater effect on people with religious, philosophical, or non-denominational beliefs which require a manifestation, such as a hijab. Moreover, the court was mindful that some workers will be treated less favourably and marginalised based merely on their religion or belief, which would, in such a case, amount to direct discrimination, which cannot be justified.

It held that a prohibition on wearing any visible form of expression of political, philosophical or religious beliefs in the workplace may be justified, in limited circumstances, by the employer’s need to present a neutral image towards customers or to prevent social disputes. It went further to state that the justification must correspond to a genuine need on the part of the employer.

Lastly, the court held that domestic and national provisions protecting the freedom of religion may be considered as more favourable provisions, such as are permitted by article 8(1) of Directive 2000/78, when examining the appropriateness of a different treatment indirectly based on religion or belief. In this regard, the court held that, as a starting point, when considering a measure intended to ensure that the application of a policy was appropriate within the meaning of article 2(2)(b)(i) of the directive, the various rights and freedoms in question must be considered. It was for the national courts, having regard to all the facts, to take into account the various interests involved in the case, and to limit the restriction on the freedoms concerned to what was strictly necessary.

The CJEU held that national courts must ensure that when several fundamental rights and principles enshrined in the Treaties are at issue and conflicting, the assessment of observance of the principle of proportionality must be carried out in accordance with the “need to reconcile the requirements of the protection of the various rights and principles at issue, striking a fair balance between them”. The CJEU, therefore, left this assessment to the member states and their domestic courts, allowing a margin of discretion in achieving that reconciliation. In both cases, it will now be up to the German courts to have the final say on whether a hijab ban in the workplace would constitute religious discrimination. The Scottish courts are yet to test whether such a move would be discriminatory.

Critique of the judgment

The problem with the CJEU’s reasoning is that wearing a cross is directly analogous to a Muslim wearing the word “Allah” (which is also extremely common), or a Jew wearing the Star of David. Indeed, this is a fairer and more accurate comparison. As a starting point, there is no specific religious obligation on a Christian to wear the cross, a Jew to wear the Star of David, or a Muslim to wear the word “Allah”.

People of faith, who choose to exercise their absolute right to freedom of thought, conscience, and to practise a religion, cannot be thought of and treated as one homogenous group. The ruling gave these Muslim women an ultimatum: the freedom of religion, or the freedom to choose an occupation and the right to engage in work.

This is because the hijab is not just a visible symbol or a manifestation of a religious belief. From a religious point of view, the hijab is considered in relation to the obligation (maintained and observed by many Muslims) for a woman to cover her hair in public. The hijab does not have to look a certain way, or be a particular design, colour, texture, or material. The purpose of wearing a hijab is not intended to signify: “I am a Muslim.” Its sole purpose is to cover the hair in order to observe a religious obligation, and any garment which achieves this is adequate, acceptable, and amounts to a “hijab”.

The CJEU evaded the central question and issue which was referred to it by effectively stating:

1. There are two competing rights.
2. It is vital to strike a fair balance between two
   competing rights.
3. It may be possible for employers to ban the hijab (in limited circumstances) where there is an internal policy requiring neutrality in relation to the wearing of visible signs of political, philosophical, or religious beliefs in the workplace.
4. If a company’s internal policy is applied in a general and undifferentiated way, then this does not amount to direct discrimination.

However, in the case of a hijab, and by the very nature of a hijab, it may constitute indirect discrimination.

The CJEU ruling was littered with vague phrases such as that the ban must be for a “legitimate aim” and a “genuine need” on the part of a company to achieve neutrality in respect of the wearing of visible signs of political, philosophical, or religious beliefs in the workplace. However, the CJEU did warn, perhaps in recognising the dangers associated with its ruling, that employers must have “regard to the actual scale and severity of the adverse consequences that the employer is seeking to avoid by adopting that prohibition”.

With great power there must also come great responsibility. The bottom line is that the CJEU bottled it and it left the central question to be answered by the German domestic courts (effectively referring the case back with some minimal guidance), evading the responsibility of ruling on an incredibly important, but difficult and contentious issue.

A major cause for concern

The judgment has already been met with a backlash from those who fear the ruling could lead to discrimination.

It applies the decisions in 2017, in G4S Secure Solutions (C-157/15) and Bougnaoui (C-188/15), when the CJEU ruled that companies may ban staff from wearing hijabs or other visible religious symbols, under certain conditions. This upset faith groups on the one hand but was welcomed by politicians on the right on the other hand, as a long-awaited judgment ricocheted into the French and Dutch election campaigns at the time. In those decisions, the first on the issue of Muslim women wearing the hijab in the workplace, the CJEU ruled the hijab could be banned, but only as part of a general policy barring all religious and political symbols, and warned that customers could not simply demand that workers remove hijabs or headscarves if the company had no internal policy in place which sought to bar religious, political, and philosophical symbols. Again, this ruling failed to recognise that religious individuals cannot be thought of and treated as one homogenous group.

The Open Society Justice Initiative said it was concerned that the ruling “may continue to exclude many Muslim women, and those of other religious minorities, from various jobs in Europe”. Maryam H’madoun, speaking on behalf of the Initiative, went further to warn employers to tread carefully, as “they risk being found liable for discrimination… if they can’t demonstrate a genuine need for a religious dress ban”.

She added: “Laws, policies, and practices prohibiting religious dress are targeted manifestations of Islamophobia that seek to exclude Muslim women from public life or render them invisible… discrimination masquerading as ‘neutrality’ is the veil that actually needs to be lifted. A rule that expects every person to have the same outward appearance is not neutral. It deliberately discriminates against people because they are visibly religious.”

The truth of the matter is that hijab bans for Muslim women in the workplace have been an extremely contentious issue in Germany for years, mostly regarding aspiring teachers at state schools, and trainee judges. On a slightly separate note, I cannot help but commend the two English junior barristers who launched a range of hijab court attire for Muslim lawyers.

In the rest of Europe, courts have also examined in what circumstances hijabs can be banned in the workplace. In 2014, French courts upheld the dismissal of a Muslim day care worker for wearing a hijab at a private creche that demanded strict neutrality from employees. Moreover, France, which has the largest Muslim population in Europe, prohibited the wearing of headscarves in state schools in 2014. On the other hand, Austria’s constitutional court ruled that a law banning girls aged up to 10 from wearing the hijab in schools was discriminatory.

On 18 July 2021, the Turkish Foreign Ministry slammed the new ruling, referring to it as a sign of rising Islamophobia. “The CJEU decision, at a time when the Islamophobia, racism and hatred that have taken Europe hostage are rising, disregards religious freedom and creates a basis and legal cover for discrimination,” the ministry said.

The courts are once again in the spotlight, as the German domestic courts have the final say on the central issue. We can only hope that they make the right decision: to protect the right to freedom of religion, and to include hardworking, talented, Muslim women in public life.