Introduction: The Ruling
In 2017, the Court of Justice of the European Union ruled in favour of allowing religious dress to be outlawed by one’s employer in order to promote neutrality in the workplace. The ruling stated:
“a prohibition on wearing any visible form of expression of political, philosophical or religious beliefs in the workplace may be justified by the employer’s need to present a neutral image toward customers or to prevent social disputes”.
On 15 July 2021, the Court refined the ruling, adding that the employer must provide evidence of a genuine need for the removal of the headscarf to promote neutrality. The ruling re-ignited an ongoing conversation regarding the treatment and integration of Muslim women in modern European society.
Context of the Case: The History of Religious Wear in Europe
Religious equality is deeply embedded into the foundational documents of the European Union. However, this ruling obstructs most of them and neither of the exceptions expressed in the directive apply in this situation.
The judgement was made on joined cases - both instances in which Muslim women in Germany were ordered to remove their headscarves at work and were then reprimanded upon their refusals to do so. Their respective cases were sent to the Court of Justice to interpret the Employment Equality Directive 2000/78, which was enacted to ensure equal treatment of employees regardless of their religion, disability, age or sexuality. The original ruling was made in 2017 amid a period of intense anti-immigrant and Islamophobic sentiment in Europe which has unfortunately remained prominent.
The refined ruling comes at a time in which institutional Islamophobia has been on the rise across Europe. The Council of Europe has had to address Islamophobia in the workplace several times in the past six months while numerous European countries, most recently Switzerland, have passed legislation that prohibits the wearing of full-face covering in public spaces. This law had originally been upheld by the European Court of Human Rights in 2014, contradicting the claims that it was a breach of religious freedom.
Analysis – Why is it Discriminatory and Issues of Neutrality
The façade of neutrality in this case acts as a legal shield for discrimination in the workplace. Asking women to abandon their faith for the comfort of the employer is not a neutral act; it is an assault on her right to religious preference. This ruling serves as an antecedent to widespread discrimination against Muslim women, further pushing them toward social isolation and increasing the stigma against Islam. The Court justifies the concept of neutrality in this case by claiming the ruling is equally applicable to all religions. However, this primarily impacts Muslim women.
The discriminatory nature of this ruling in practice has legal objections in the Employment Equality Directive as well. Indirect religious discrimination, which is addressed in Article 2 of the Directive, addresses an outwardly neutral provision which puts a particular group of persons at a substantial disadvantage. The Open Society Justice Initiative found the ruling to violate neutrality on two grounds: the first being that it is direct discrimination to adopt and enforce clothing rules that impact worker with certain religious beliefs differently to those with other beliefs. The second ground is that there is no legitimate claim to neutrality when targeting employees expressing their religious beliefs through clothing.
The freedom for Muslim women to express their religion has been continually whittled away over the past decade. Countless Muslim women have come forward to address the discrimination they are facing daily and the shifting political climate villainising them. The legislative accompaniments to the Islamophobic sentiment in modern Europe will make it increasingly more difficult for Muslim women to withstand the blow to their religious freedom.