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The ECJ Hijab Ban: A Call For Calm And A Call To Action

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So an employer wants religious or political neutrality – but does the hijab really get in the way of this? A hijabi schoolteacher might be religious, secular, or politically left or right-wing. Hijabis are diverse and a simple cloth worn on the head in no way compromises neutrality.

This article was originally published here, reposted on TMV with the author’s permission. 

I was 14 years old when France banned religious symbols in schools and hospitals. After seeing a documentary about how this affected French Muslim girls, I decided this would be the right topic for my year 9 English talk. I was passionate and persuasive and my entire non-Muslim class agreed that the French law was discriminatory.

I didn’t wear hijab until the age of 19 but I somehow felt personally affected by the French law. It was clear to me then as it is now that this was a law intended to target Muslims, most evident by Jaques Chirac’s comments that the hijab is, for the French, “a kind of aggression that is difficult to accept”.

In the documentary, I saw a French Muslim school girl trying to compromise with her teachers by wearing a black bandana to cover her hair instead of a full hijab. Yet she was told that it still looked too Islamic. They finally accepted a tiny pink bandana that barely covered her hair. I recall how uncomfortable she appeared, self-consciously tugging at the sides of her scarf and I remember thinking how farcical this whole thing was.

That was 2004. Now, we’re seeing headlines such as “European Companies May Ban the Hijab at Workplaces” and those feelings of injustice resurface. Banning hijabi women from any workplace would be outrageous and there is no justification for it. The truth is however that most of these recent headlines are misleading and intended as clickbait. Therefore, we need to have a closer look at the European Court of Justice ruling.

Direct vs Indirect Discrimination

First, it is important to clarify the difference between direct and indirect discrimination in the workplace. If a Muslim is treated less favourably at work because they are Muslim, that is direct discrimination. But if the workplace has a policy that applies to everyone but puts a Muslim at a disadvantage, that would be indirect discrimination.

The ECJ held that banning employees from wearing any visible sign of political, philosophical, or religious belief at work is not direct discrimination so long as the ban is applied in a “general and undifferentiated” way.

The ECJ also held that where such a ban indirectly discriminates, an employer can justify this if they can demonstrate a “genuine business need” for a policy of political, philosophical, or religious “neutrality” with regard to its customers or users, in order to take account of their “legitimate wishes”.

Two cases were brought to the ECJ in which German women were suspended for wearing a hijab to work. It was accepted that this had an indirect discriminatory effect but the court had to decide whether this was justified by the employer’s desire for religious neutrality. The court held that while it is fine for an employer to desire religious neutrality, a mere desire is not enough to justify indirect discrimination.

A policy of “neutrality”

To justify an indirectly discriminatory policy, an employer must demonstrate that it had a genuine need for the policy. And to establish this need, the employer must consider the rights and legitimate wishes of customers or users, for example, parents who wish to have their children looked after in a religiously neutral environment. The ECJ noted two further conditions for objective justification which are:

  • The policy of neutrality is applied in a manner that is consistent and systematic and;
  • The policy must be limited to what is strictly necessary, taking into account the actual scale and severity of the negative effects of not having such a policy

Clearly, the ECJ ruling is not simply a green light for employers to ban the hijab as many headlines seem to suggest.

It is also worth noting that this ruling is actually much less troubling than the French hijab ban of 2004. How? Because that was a ban on conspicuous religious symbols. That meant that Christians could still wear a small cross and Sikhs could still wear a small hair net instead of a turban – so in reality, the ban served to discriminate primarily on Muslims.

But this ECJ ruling differs because it says that if an employer wants to ban religious symbols, it needs to ban all of them – not only the obvious ones and therefore the discriminatory effect is certainly not as serious as France’s Laïcité-inspired version. In any case, since the UK has left the EU, this judgement is not binding on UK courts and tribunals.

Should British Muslims worry?

Any discriminatory policy that affects Muslims around the world should trouble all Muslims regardless of where they live. We should all be concerned about the niqab-ban in several European countries and the increased securitisation of French Muslims. Not just because these laws can trickle down towards us in future, but because we have a religious obligation of brotherhood and solidarity with our fellow Muslims wherever they may be.

That said, this decision can still affect British Muslims living and working in the UK. S.6(2), of the EU Withdrawal Act 2018 states that UK courts and tribunals may ‘have regard’ to ECJ judgments‘ so far as it is relevant to any matter before the court or tribunal’. With this in mind, British Muslims do have a valid cause for concern.

Hijab: Just a religious symbol?

Legal matters aside however, it is troubling that the hijab is being considered merely as a religious symbol and that this simplistic view is largely left unchallenged. It is important that we distinguish the Muslim headscarf from other religious symbols.

The hijab means different things for different Muslim women. Some may wear it simply as an outward symbol of their faith or a cultural custom and they might even have no issue with removing it. Some might wear it day to day but remove it on weddings or on a night out. But in my own experience, most hijabi women cover their hair as an observation of their faith, which they believe is a command of Islam.

This command is one standard of modesty – the normative Islamic standard. While removing the hijab might be a simple task for one woman, it will be unthinkable for another. For many Muslim women, including myself, the hijab is our clothing, and asking us to remove our clothing is only justified if there is a genuine medical need.

A slippery slope

So an employer wants religious or political neutrality – but does the hijab really get in the way of this? A hijabi schoolteacher might be religious, secular, or politically left or right-wing. Hijabis are diverse and a simple cloth worn on the head in no way compromises neutrality. Furthermore, how far can an employer go in his desire for an appearance of neutrality in his company? What about Muslim names – do they affect the appearance of neutrality in the same way as a hijab supposedly does? Or should Muslim women adopt more respectable-sounding work names to go with their new hijabless personas such as Ana or Helga?

The point is that the western perception of neutrality is not always one that everyone can get behind. Many Black British people have experienced a similar issue trying to explain to their employers and headteachers that their afros or braids are not a statement or symbol but simply their natural hair. Only last year the Halo Code was launched to ask schools and companies to commit to recognising natural hairstyles. This was necessary because many employers expect Black people to conform to white norms without realising the implications of it and how damaging these expectations can be.

Similarly, our employers need to be educated about the very real, negative effects removing our hijabs can have. That it is not just a simple case of removing a piece of cloth from our heads. The only way in which this can be achieved is by hijabi women coming together, organising ourselves, and explaining with a unified voice what the hijab really means to us.

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