The right of Muslim women to wear the headscarf and full-face veil in workplaces and public spaces has never been under greater scrutiny. It is a right that has long been contested in those European countries whose constitutions guard a strict divide between the state and religion: France and Belgium restricted the right of women to wear the full-face veil in public places more than five years ago, in 2011. But the rise of populism across the continent is fanning the debate elsewhere. As immigration and integration have become increasingly salient political issues governing coalitions in both the Netherlands and Austria have pursued similar restrictions; and Angela Merkel at the end of last year endorsed a partial ban in Germany.
It is in this fraught context that the European court of justice on Tuesday ruled on the right of employers to ban female employees from wearing Islamic headscarfs in two cases referred by the Belgian and French courts. The court came to three key conclusions. First, it ruled that any prohibition on employees wearing Islamic headscarves at work that arises from a more general ban on political, philosophical or religious symbols does not constitute direct discrimination under EU law. Second, it concluded that it is legitimate for an employer to want to display a policy of religious or political neutrality in relation to employee dress, but only for workers coming into direct contact with its customers. Third, it ruled employers cannot use the expressed wish of a customer not to receive a service from an employee wearing a headscarf as grounds for differential treatment.
The ruling has already been welcomed as a victory by parts of the European right, and condemned by human rights and religious groups as trampling individuals’ religious freedoms. It would indeed be alarming if its ruling on neutrality paved the way for employers to adopt general rules about dress that, while in theory apply equally to everyone, in practice arbitrarily exclude employees of particular faiths. But it is too soon to know whether that will be the effect.
Just as significant is what the ECJ has left open to the interpretation of national courts. The ECJ was clear a general workplace ban on religious or political symbols may constitute indirect discrimination if it puts people of particular faiths at a disadvantage, but that it is up to national courts to determine whether such bans are a proportional way for employers to pursue legitimate aims, taking into account factors such as the conspicuousness of the religious symbol, the nature of the employee’s job and the national identity of the country concerned. This is in a similar vein to rulings from the European court of human rights, which upheld France’s ban on wearing burqas in public places, accepting its government’s case that it encourages citizens to “live together”. It has also upheld the right of a British Airways employee to wear a cross on the grounds that it did not interfere with her work, but ruled against a nurse’s right to do so because it put at risk patient health and safety.
Who is best placed to judge how an individual’s freedom of religious expression should be balanced against its impact on others and the right of the state to demand assimilation with the cultural norms of the majority? There are common sense rules of thumb: it would be terribly unjust for a bank teller to be dismissed as a result of wearing a turban or headscarf that does not materially affect their ability to do their job; but on the other hand, a ban would seem reasonable where there is proof religious dress impacts on hygiene in healthcare settings. But it is in the grey areas that this balancing act becomes fiendishly complex. Tuesday’s ruling makes clear much will be left to national courts. This will allow shared European values to be applied differently in diverse cultural and constitutional contexts. But it may lead to some countries legally adopting approaches others may find difficult to accept.