To Ban or not to Ban – that is still the question
| Friday, 17 March 2017
Dismay and jubilation vie as European religious minorities mull headscarf ruling
By Safya Khan-Ruf
Workplaces being allowed to ban the headscarf made headlines around the world this week, provoking outrage, disappointment and in some groups jubilation.
The highest court in Europe ruled that Islamic headscarves could be banned at work if this was part of a general policy barring all religious symbols in the workplace.
Political groups on the right welcomed the ruling, while human rights organisations such as Amnesty International condemned it as 'opening a backdoor to prejudice'. Meanwhile many religious minorities have felt unfairly targeted, fearing increased discrimination in sometimes already-difficult situations in the workplace.
Saïla Ouald Chaib, a human rights lawyer working at Ghent University in Belgium, had hoped the European Court of Justice (ECJ) would rule differently: ‘The court is giving a perfect recipe to employers – as long as you have a general regulation then you can ban the headscarf and other religious signs,’ she said.
Chaib says the judgement is discriminatory against all employees with obvious religious symbols and could encourage further stigmatisation. She believes Muslim women wearing a headscarf are disproportionately affected, especially in Belgium where regulations have already banned them in schools, sports and swimming pools.
French Muslim dismay
Testimonies from young, educated Muslim women navigating the job market in France and Belgium echo Chaib’s dismay. Sara, a twenty-something freelance designer in France, is disappointed – but not surprised.
‘I don’t put my photo on my CV,’ she said, as she described the barriers she’s had to overcome since she began wearing the hijab (Islamic headscarf) in her teens. Due to laïcité, France’s particular brand of secularism, she had to remove her headscarf to be able to attend class.
‘They had a whole delegation of teachers and in front of everyone they told me – you remove your headscarf or you leave,’ she said. When Sara began to apply for internships and jobs, she often got rejected at the interview stage when she was asked pointed questions about her views on laïcité. One employer told her: ‘I don’t want you wearing your grandmother’s tablecloth on your head.’
Ranjit Singh, from the Representative Council of Sikhs in France, described similar problems for young Sikhs wearing the traditional turban, the dastar. International firms in banking and finance are not usually the problem, according to Singh.
France has a large number of small-to-medium sized businesses and Singh said that is where most of the discrimination occurred for young Sikhs, with job interviews for qualified candidates cut short because of their turban.
‘The Dastar is part of the Sikh identity and this ruling could justify discrimination where Sikhs would be judged on their appearance instead of their competencies,’ he said.
The Sikh Federation isn’t worried for Sikhs in the UK though, which it described as an ‘open-minded country that appreciates and accepts differences’.
‘We also have national laws and widely accepted behaviours that value freedom of expression, freedom of religion and provide protection against discrimination,’ a spokesperson said.
The judgement made by the ECJ is short, but it specified that headscarves and other religious symbols could only be banned if it was justified by the employer. In the UK, where both private and public companies usually allow religious headwear and symbols, the judgement is unlikely to have any impact.
Lucy Vickers, law professor at Oxford Brookes University agrees.
‘If you are a UK business saying great, we can now ban this, you would be in great trouble because we don’t have a culture and practice of doing this, so you wouldn’t be able to justify it,’ she said.
Vickers says the ruling is essentially allowing European member states to continue doing what they were doing before. Minorities wearing religious symbols in France or Belgium are more likely to fall on the wrong side of their countries’ brand of secularism than in a country like the UK, which is more accepting of diversity.
In the first case referred to the ECJ by the Belgian courts, Samira Achibita, a receptionist for G4S, was dismissed when she began to wear a headscarf and refused to take it off. The company said she had broken its unwritten neutrality rules. In the second case, Asma Bougnaoui, a design engineer for Micropole was dismissed after a client complained they were ‘embarrassed’ by her headscarf and she refused to remove it.
While the ECJ ruled that customers could not simply demand the removal of headscarves if the company has no policy barring religious symbols, it did rule indirect discrimination legal if it could be justified by a “legitimate aim” such as a philosophical, religious and political neutrality policy.
A G4S spokesperson told HOPE not Hate that its policy of barring religious symbols only existed in their Belgian and French offices so as to respect both countries’ ‘long standing custom of neutrality’.
Mejindarpal Kaur, director of United Sikhs in Belgium, is disturbed by the implications of the ruling which ‘allows an employer's freedom to conduct business to override an employee's fundamental human right to practise her faith’.
She added that the the ECJ had ruled neutrality a public interest ‘that can be protected by targeting those who express their faith in a visible way’.
Acceptable or not
The ECJ ruling did not give much guidance on what was acceptable justification for indirectly discriminating against employees wearing religious symbols. Vickers says that was left to national courts and how it is interpreted in countries like France will have ‘big equality implications’.
‘What it does is, it takes [women wearing headscarves] out of the public eye and that’s not good news and doesn’t create any space for positive role models,’ Vickers said. Chaib agrees that the solution is not hiding religious diversity but reducing ignorance. ‘I really believe that we would live in a much nicer world, in a much nicer society if we would get to know each other better.’
While the court’s ruling cannot be appealed or overturned, grassroots mobilisation by minorities is growing across Europe. Chaib says the ‘law is not the only answer’ and her hopes are fixed on employers across Europe.
‘They can make a choice to still be inclusive, they can make a choice to have a policy where they respect people, where they have representation from all of society – this is not only for the sake of visibly religious people but for the benefit of society as a whole,’ she said.