Earlier this week, some rather unfortunate news hopped across the English Channel about a ‘Hijab Ban’. A quick glance at the headlines on the story would tell you that the far-right had won out, religious freedom was dead, and the European Court of Justice (ECJ) was drunk on oppressive power.
But is there more to it than that?
From a legal standpoint, the whole situation is far more complex than the reports made it seem. The ruling relates to a case brought to the ECJ by a Belgian woman and a French woman, who had both been fired from their respective jobs for wearing a headscarf.
The Belgian woman’s employer had ‘unwritten rules’ prohibiting employees from wearing signs of their political, philosophical or religious beliefs, which became written the day after she started wearing it. Sounds sketchy. The French woman was fired for not removing her headscarf on account of ‘neutrality’ after a customer complained to her boss. Very sketchy. Even so, the court felt the first reason was just.
It said: ‘An internal rule of an undertaking which prohibits the visible wearing of any political, philosophical or religious sign does not constitute direct discrimination.’
(AKA a rule banning political, philosophical or religious signs is fine as long as a rule is actually in place.)
The court went on the say: ‘However, in the absence of such a rule, the willingness of an employer to take account of the wishes of a customer no longer to have the employer’s services provided by a worker wearing an Islamic headscarf cannot be considered an occupational requirement that could rule out discrimination.’
(AKA you can’t fire someone in a hijab on account of a customer complaint if you don’t have a rule.)
So far, so bad. So why are legal-types claiming the ruling was totally misreported? Hold on tight, because we’re about to try to explain you a thing or two:
The ECJ does not reach verdicts, it merely provides guidance, so overruling the original case could have been seen as an extra-judicial breach of power.
The question was not “is it okay to ban headscarves?” but “if an employer prohibits all employees from wearing religious symbols at work, is it direct discrimination under EU law if a Muslim woman is prevented from wearing a headscarf due to that policy?” That means it’s ok for a company to ban crucifixes, rosary beads, yarmulkes – all religious clothing – if they have a policy in place prohibiting them.
This does not apply to public places, only private companies. And if said companies want to ban headscarves, they have to have a rule in place that bans all religious symbols. They cannot discriminate.
So that’s good? Well, not really. What this event has shown is that media outlets tend to report stories in certain ways, and people believe what they want to. This was not a ‘hijab ban’, but that is how it has been represented by the media. And, partly because of that, the effects of this case are likely to reach beyond the dress code policies of private companies in France; undesirable types will likely use it as justification to mistreat women in headscarves. And that really is sad.
To end on a lighter note for anyone in the UK, Theresa May recently backed a Muslim woman’s right to wear a hijab, so at least we know not to expect any similar rulings in this country. Hooray!!