EU rules on headscarves at work: pragmatic call, or an open door for the right?

Employers may ban staff from wearing visible religious symbols at work, the European Court of Justice (ECJ) ruled Tuesday, drawing swift praise and criticism from opposing ends of the political spectrum. 

The decision, which comes a week after a similarly controversial ruling that European Union member states are not obligated to issue humanitarian visas to help migrants enter their countries, has been applauded by far-right leaders and denounced by others who argue that the court’s decision paves the way for religious discrimination against Muslim women. 

Despite a recent surge in far-right populism and anti-migrant sentiment as European countries navigate the integration of millions of Muslim refugees, experts say the ruling doesn't necessarily reflect the rise of far-right ideology, as it aligns with past rulings by the court over similar matters. But it leaves the question of what constitutes indirect discrimination up to national courts, where, as member states grapple with rising animosity toward Muslim newcomers, the growing influence of far-right politics is more likely to be felt. 

The rulings on Tuesday and from last week "represent a recognition of high politicization of these issues within and across European countries," says Karen Alter, a professor of political science and law at Northwestern University in Evanston, Ill. Given how contentious headscarves have become, and the lack of legal or political consensus, it may be wise for the ECJ to tread carefully, she says: an EU court decision out of step with popular opinion could decrease support for the EU itself, so "the ECJ will not be helping the European project by taking a hard line."

In other words, she tells The Christian Science Monitor in an email, "the ECJ ... is stepping back to let politicians deal with explosive political issues." 

The judgment on Tuesday dealt with the cases of two women, one in France and one in Belgium, who were dismissed from their jobs for refusing to remove their hijabs. Their dismissals may have breached EU laws against religious discrimination, the court determined, depending on the view of national courts. The case of French engineer Asma Bougnaoui, who was fired by software company Micropole after a customer complained that the sight of her Muslim headscarf caused them discomfort, may well have constituted direct discrimination, the ECJ concluded.

But the court also determined that services firm G4S in Belgium was justified in dismissing receptionist Samira Achbita in 2006 for violating a company-wide dress code requiring employees dealing directly with customers to project an image of political and religious neutrality. "An internal rule" prohibiting "the visible wearing of any political, philosophical or religious sign does not constitute direct discrimination," the ECJ ruled. 

While such dress codes must apply to all religious symbols, including Sikh turbans, Jewish kippahs, and Christian crucifixes, it is "not inconceivable," the court noted, that the practice could be deemed indirect discrimination for disproportionately targeting Muslims over other religious groups. 

In theory, the ECJ's ruling paves a neutral middle ground that allows individual companies to eliminate all religious symbols if they wish. But even an attempt at neutrality creates opportunity for discrimination, some argue, particularly against Muslim women who choose to wear headscarves. 

"The court did say that employers are not at liberty to pander to the prejudices of their clients," John Dalhuisen, the director of Amnesty International's Europe and Central Asia program, told the BBC. "But by ruling that company policies can prohibit religious symbols on the grounds of neutrality, they have opened a backdoor to precisely such prejudice."

Now, the question of whether such a dress code constitutes indirect discrimination has been referred back to the Belgian Court of Cassation, setting a somewhat unpredictable precedent for future cases of a similar nature. 

"It's going to be very complicated to rule on such cases within each country, because it will come under the jurisdiction of each separate nation in the EU," noted Al Jazeera's Natacha Butler. "[T]here are so many shades of grey what constitutes discrimination against somebody's religious freedom or not." 

In Germany, for example, public debate over religious dress has centered on the burqa – a full veil that covers the face entirely – with religious, conservative, and human rights groups unable to agree whether the veil represents religious freedom or suppression, and whether banning it is a form of discrimination. In France, which is home to the largest Muslim population in Western Europe, public tensions first arose over the banning of the niqab (which covers all but the wearers' eyes) in public, later followed by a controversial ban against "burkinis," or full-coverage bathing suits. 

It is in national courts in Belgium, France, and elsewhere that the rise of far-right political ideology and anti-migrant sentiment is more likely to come into play, says Lisa Conant, a professor of political science at the University of Denver. 

"The ECJ basically said it was the national court who can decide whether [Ms. Achbita's case] is indirect discrimination or not. But it sort of gives that court an out by saying you can justify indirect discrimination if there’s a legitimate aim and if that aim is proportional," she tells the Monitor in a phone interview. "That's where I think you would see this influence of far-right populism: at the national level."  

The Open Society Justice Initiative, a group backed by the philanthropist George Soros, expressed concern that Tuesday's ruling "weakens the guarantee of equality" under European Union laws. 

"In places where national law is weak, this ruling will exclude many Muslim women from the workplace," said policy officer Maryam H'madoun, as reported by Reuters. 

It's not inconceivable that the EU could eventually take a firmer stance on the issue, should there be a widespread change in public attitudes, Professor Alter of Northwestern says. 

"This is how the balance between law and politics normally works," she tells the Monitor. "Judges try to ratify emerging consensus, rather than impose controversial solutions." 

As an example, she cites the debate over same-sex marriage in the United States, where evolving public opinion resulted in first state-level, then nationwide, legalization. If a shift in public attitudes regarding religious symbols in the workplace and similar issues were to spread across EU member states in a similar way, European courts could follow a similar path. 

"Should a consensus emerge, the ECJ may one day ratify and enforce this consensus view," Alter says – but given today's political climate, that day may be a ways off.