Companies in Europe can ban the hijab at work without it being counted as ‘religious discrimination’ as long as the policy of not wearing religious symbols applies to all workers of all religions.
Companies in Europe can ban the hijab at work without it being counted as ‘religious discrimination’ as long as the policy of not wearing religious symbols applies to all workers of all religions.
Following the latest ruling of the Court of Justice of the European Union, companies can now ban their employees from wearing religious symbols if it is applied to all workers.
A company’s internal regulations can prohibit its employees from manifesting their religious beliefs, according to a judgment made public, on 13 October, by the court. The top EU court decision was issued regarding a case of a veiled woman who took a company to a Belgian labour court for dismissing her internship application.
In a job interview, the woman indicated that she did not want to follow the company’s “neutrality policy”, which would have resulted in her removing her veil. The woman felt discriminated against for her religious beliefs after being rejected for two internships.
A few weeks later, she renewed her internship request, offering to wear a different headgear. The company denied her request because keeping her head covered was not allowed, whether with a cap, a hat or a scarf.
The young woman then reported this situation to the public anti-discrimination body. She seized the French-speaking labour court in Brussels, considering that this refusal of an internship violated the provisions of Belgian law.
To see more clearly, the Brussels court asked the European court whether the ban on wearing a religious sign or clothing enshrined in the company’s work regulations “constitutes direct discrimination based on religion.”
To this question, the CJEU answered in the negative. The court thus issued a statement saying, “a company’s rule prohibiting the visible wearing of religious, philosophical or spiritual symbols does not constitute direct discrimination if applied generally to all workers.”
It is not thus deemed “direct discrimination based on religion or belief” since this provision of an internal regulation is “applied in a general and undifferentiated manner”.
Nevertheless, the Luxembourg-based court specifies that it may be considered discriminatory “if it is established that the neutral obligation leads, in fact, to a particular disadvantage for people adhering to a religion or given beliefs”. A company must then justify “a legitimate objective” and “appropriate and necessary means to achieve this objective”.
Thus, in France, employers can require their employees not to wear religious signs, such as the Muslim veil. This restriction of freedom must be justified by “the necessities of the proper functioning of the company”: for instance, for a seller to be able to deal with multi-confessional customers.
Four years earlier, the European Court of Human Rights delivered another verdict when the case concerned a Christian flight attendant from British Airways. She was sanctioned for wearing a cross around her neck during work. The institution, based in Strasbourg, considered the airline guilty of discrimination against this employee.
“Displaying your beliefs at work is a right as long as it does not jeopardise the safety or freedom of others”, the court said.
The never-ending hijab debate in European countries
For years, wearing the hijab has always stirred controversy in Europe.
Article 9 of the European Convention on Human Rights provides that “Everyone has the right to freedom of thought, conscience and religion; this right implies (…) the freedom to manifest one’s religion or belief individually or collectively, in public or in private, through worship, teaching, practices and the performance of rites.” This right, however, is not absolute because, as provided for in the second paragraph of this article, it may be limited, among other things, for reasons of security and public order.
In France, freedom of religion is guaranteed by the principle of secularism, by which the State does not have an official belief, and everyone is, therefore, free to practice their own religion. In Italy, the same is true, but this principle is not explicitly provided for in the Constitution, unlike in France. Yet it also allows freedom of religion to be limited in the name of other constitutional requirements of higher value.
Secularism was notably exploited by several French mayors, in 2016, about the “burkini”, which is a covering outfit allowing swimming but not concealing the face. These mayors, through decrees, have prohibited wearing this outfit on the beaches and when swimming. The French Council of State held that the principle of secularism could not be the basis for this ban, the only possible justification being the presence of “proven risks of harm to public order”.
Even if several European countries have been imposing restrictions on wearing the full veil, France remains alone in prohibiting the use of the hijab for all public school students and public officials.
In 1983, a law reaffirmed public officials’ general principle of neutrality, effectively prohibiting the wearing of religious symbols by the latter in exercising their function.
In 2004, France voted a law prohibiting “ostentatious” religious symbols within public schools, except in universities considered public spaces.
And in 2010, another law was passed banning the Burqa and Niqab.
Belgium was the first country after France to ban the Burqa or the Niqab from public space in 2011. Bulgaria followed in 2016, then Austria in 2017, the latter country having even expressly forbidden, in 2019, the full veil in primary school.
It has also been banned in public spaces in Denmark since 2018. In Italy, though, the full veil is prohibited in a few regions, such as Lombardy. At the national level, fines are regularly imposed for wearing the Niqab under an already-established law requiring citizens to be identifiable.
In Europe, the weaponisation of secularism, especially in France, has legitimated Islamophobia preventing veiled Muslim women from studying and working. In light of recent events in Iran, France’s president Emmanuel Macron expressed solidarity with the protestors and said France is with them.
However, this move is deemed counterfeit by Muslim associations in France. Indeed, news coming from Iran has a particular echo in Europe and, more specifically, in France in terms of women’s rights. A parallel seems to stand out in the public debate between the courage of Iranian women daring to remove their veil and the alleged “enslavement” of French women wishing to wear it.
It is important to consider the situation of Muslim women choosing to wear the veil in France and the difficulties that make their lives precarious: the discrimination they suffer heavily in employment, housing, administration, and education, but also the insults and physical attacks to which they are constantly subjected and which sometimes have fatal consequences.
