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Ban on Head Scarves at Work Is Legal, E.U. Court Rules Ban on Head Scarves at Work Is Legal, E.U. Court Rules
(about 5 hours later)
LONDON — Employers are allowed to bar workers from wearing head scarves provided restrictions on religious garments are applied to employees of all faiths, the European Union’s top court ruled on Tuesday, in a decision that could shape the place of Islam in public life on the Continent. LONDON — The European Union’s highest court waded into the politically explosive issue of public expressions of Muslim identity on Tuesday, finding that private employers can ban female workers from wearing head scarves on the job.
In its ruling, the Luxembourg-based European Court of Justice said that internal regulations banning “the visible wearing of any political, philosophical or religious sign” did not constitute direct discrimination. The ruling comes as Europe is beginning a critical election season, with races in the Netherlands, France and Germany, and with anti-immigrant, anti-Islam populism rising in many countries. Dutch voters go to the polls on Wednesday, and the far-right party of the anti-Islam politician Geert Wilders is expected to fare well.
The court also said that, in the absence of a general ban on religious symbols, employers could not prevent a worker from wearing a head scarf simply because a customer demanded it. In its ruling, the European Court of Justice found that company regulations banning “the visible wearing of any political, philosophical or religious sign” did not constitute direct discrimination — so long as such prohibitions applied to religious garb from all faiths, a requirement that legal experts say could also encompass a Sikh turban and a Jewish skullcap, among other religious symbols.
The decision by the court comes as countries across Europe are grappling with how to accommodate huge numbers of migrants, many from predominantly Muslim countries in the Middle East and Asia. Nationalist, right-wing parties have seized on the issue of Muslim immigration to build support before elections in France, Germany and the Netherlands. “It is a very bold step,” said Camino Mortera-Martinez, a research fellow at the Center for European Reform in Brussels, describing the ruling as a landmark decision, if also a political and pragmatic one. “Recently we have seen the court being much more attentive to the political winds rather than being so legalistic, because of the recognition that the E.U. is at risk of collapse.”
The decisions of the European Court of Justice, which interprets the law for the 28-nation European Union, are binding on member states. Legal experts said the head scarves ruling could have far-reaching consequences for the balance between freedom of religion and the rights of companies across the bloc to put in place policies requiring religious neutrality. She characterized the ruling as further evidence that the European court has been pivoting after years of rulings that favored the rights of minorities. This month, the court ruled that European Union member states were not obliged to issue visas to people who planned to seek asylum in their countries, even if they were vulnerable to inhuman treatment or were threatened with torture.
The ruling followed advisory opinions in two separate cases that appeared somewhat contradictory. In a case in May, Juliane Kokott, an advocate general with the court, issued an advisory opinion saying that a company could prohibit a Muslim employee from wearing a head scarf provided that the policy applied to all religious attire and did not single out Islam. Far-right leaders surely would have pounced had the court ruled differently. Along with Mr. Wilders, the French far-right leader Marine Le Pen has stirred up anti-Islam anger by accusing Muslims of failing to integrate. Europe has been struggling to accommodate huge numbers of migrants, many from predominantly Muslim countries.
Few issues are more politically fraught in Europe than the issue of the rights of observant Muslim women to cover their faces and bodies. Last summer, for instance, a few French municipalities generated global headlines — and outrage — when Muslim women were prohibited from swimming in the sea while wearing a body covering known as the burkini.
Several countries — including France, Belgium, Austria and the Netherlands — have either passed laws that led to bans on full face-covering veils in public, or are considering legislation that would do so. Those laws, however, apply to public and government spaces.
The ruling on Tuesday, which experts said was the first time the court had issued a ruling on women wearing head scarves while on the job, applies only to the workplace and provides a minimum legal standard that member states must meet.
The European Court of Justice, based in Luxembourg, interprets the law for the 28-nation European Union, and its decisions are binding for member states. Its ruling on Tuesday followed advisory opinions in two distinct cases before the court.
In a case in May, Juliane Kokott, an advocate general with the court, issued an opinion saying that a company could prohibit a Muslim employee from wearing a head scarf, provided that the policy applied to attire for all religions and did not single out Islam.
That opinion came after a complaint by Samira Achbita, a Muslim woman in Belgium, who was fired as a receptionist for the international security services company G4S after she insisted that she be allowed to wear a head scarf at work.That opinion came after a complaint by Samira Achbita, a Muslim woman in Belgium, who was fired as a receptionist for the international security services company G4S after she insisted that she be allowed to wear a head scarf at work.
Ms. Achbita sued the company, and the Belgian Court of Cassation asked the European Court of Justice for clarification about what European law required.Ms. Achbita sued the company, and the Belgian Court of Cassation asked the European Court of Justice for clarification about what European law required.
The Court of Justice concurred with the advisory ruling, saying that Ms. Achbita had not been subject to discrimination because the internal directive was broadly written and did not specifically address Islam. The Court of Justice concurred on Tuesday with the advisory ruling, saying that Ms. Achbita had not been subject to discrimination because the internal directive was broadly written and did not single out Islam.
The court said that it was up to the Belgian Court of Cassation to determine whether an employer had committed “indirect discrimination” if any directive ultimately affected “persons adhering to a particular religion or belief.” The court said it was up to the Belgian Court of Cassation to determine whether an employer had committed “indirect discrimination” if any directive ultimately affected “persons adhering to a particular religion or belief.”
In a separate case, in July, Eleanor Sharpston, another advocate general with the European Court of Justice, issued an advisory opinion that a French company had engaged in unlawful discrimination when it dismissed a Muslim woman for wearing a head scarf when dealing with clients. In a separate case, from July, Eleanor Sharpston, another advocate general for the court, said that Micropole, an information technology consultancy, had engaged in unlawful discrimination when it fired a Muslim woman, Asma Bougnaoui, in 2009 for refusing to remove her head scarf when dealing with clients.
The woman, Asma Bougnaoui, lost her job at Micropole, an information technology consultancy, in 2009, after she refused to abide by the company’s request that she remove her head scarf when meeting with clients. Ms. Bougnaoui took her case to a French court, which referred it to the European Court of Justice. Ms. Bougnaoui took her case to a French court, which referred it to the European Court of Justice. In her advisory opinion, Ms. Sharpston said the company’s decision to dismiss Ms. Bougnaoui had constituted “direct discrimination” based on religion or belief.
In her advisory opinion, Ms. Sharpston said that the company’s decision to dismiss Ms. Bougnaoui had constituted “direct discrimination” based on religion or belief. Ms. Sharpston said there was no evidence to suggest that Ms. Bougnaoui had not been able to perform her job as a design engineer because she was wearing a head scarf. Ms. Sharpston said there was no evidence to suggest that Ms. Bougnaoui’s scarf interfered with her ability to perform her job as a design engineer. If she had covered her face completely, the opinion found, the situation would have been different, because eye-to-eye contact was important in Western business interactions.
Ms. Sharpston indicated, however, that if Ms. Bougnaoui had covered her face completely, the ruling would have been different, because eye-to-eye contact was considered important in the norms of Western business interaction. But the court on Tuesday found that, in the absence of an internal company policy, it was not enough for an employer to simply justify a dismissal by pointing to a customer’s desire not to interact with someone wearing a head scarf.
The Court of Justice said “the willingness of an employer to take account of the wishes of a customer” who did not want to work with someone wearing a head scarf “cannot be considered a genuine and determining occupational requirement.” Legal experts said the court’s ruling could give greater leeway to employers across Europe to regulate religious attire in the workplace, as long as they did so with neutral policies that did not target Muslims.
In its ruling, the European court said it would be up to the French court to determine whether Ms. Bougnaoui’s dismissal was “appropriate and necessary,” in line with the ruling in Ms. Achbita’s case. Simon Cox, a senior legal officer specializing in anti-discrimination issues with the Open Society Foundations, said the ruling “will force employers to choose which side they are on and open the door to a greater willingness not to employ women in head scarves.”
Rights advocates criticized Tuesday’s decision, saying that it undermined the guarantee of equality. Maryam H’madoun, a policy adviser who is also with the Open Society Foundations, expressed concern that the ruling could potentially help exclude many Muslim women from the work force. “This disappointing ruling weakens the guarantee of equality that is at the heart of the E.U.’s anti-discrimination directive,” she said.
Maryam H’madoun, a policy adviser with the rights organization Open Society Foundations, said that in many European Union member states, national law would still recognize that a ban on religious head scarves at work constituted discrimination. Colm O’Cinneide, a professor of human rights and constitutional law at University College London, said the ruling could lead to more bans on religious attire in workplaces.
She expressed concern, however, that the ruling would exclude many Muslim women from the work force in countries where the laws on wearing religious symbols are different. He also noted that the ruling required that any ban on religious attire be “objectively justified” and that imposing a ban could be difficult when employees were not the public face of the company or interacting with customers directly.
“This disappointing ruling weakens the guarantee of equality that is at the heart of the E.U.’s anti-discrimination directive,” Ms. H’madoun said. “Depending on a country and its internal debates, companies that want to have a head scarf ban will feel more comfortable doing so, and this ruling gives them some legal cover,” Mr. O’Cinneide said.