EU's top court allows headscarf ban at work, drawing ire from activists

A top European Union (EU) court has ruled in favour of barring women with headscarves from entering workplaces, saying that the ban does not constitute discrimination if it is part of a wider restriction applied to all workers.

The decision has been criticised by rights activists, with some calling it a violation of  "free choice, expression, belief, and their (women's) bodily autonomy." 

The Court of Justice of the European Union (CJEU) refers to the case of a woman who took a company to court for dismissing her application for an internship after she had refused to take her headscarf off to comply with company policy.

It is only the latest in a string of controversial rulings and laws that European Muslims say discriminate against them.

The firm says it has a neutrality rule that means no head covering is allowed, whether it is beanies, caps or headscarves.

The woman took the case to a Belgian labour court, which sought the opinion of the CJEU.

"The internal rule of an undertaking prohibiting the visible wearing of religious, philosophical or spiritual signs does not constitute direct discrimination if it is applied to all workers in a general and undifferentiated way," judges said.

But rights activists and legal experts have previously punched holes in the court's "neutrality" argument. 

According to Human Rights Watch,  the neutrality reasoning "has previously been used to justify similar public sector bans and this extends that logic to the private sector, opening the door to widespread employment discrimination." 

"The court’s reasoning that allowing religious dress could harm a business's ability to operate rests on the flawed logic that a client’s objections to employees wearing religious dress can legitimately trump employees’ rights," senior researcher at Human Rights Watch, Hillary Margolis, wrote in June last year while responding to a similar rulings on cases heard by courts in Germany.

In its latest ruling, the CJEU states that “religion and belief” must be treated as a single ground for discrimination in order to avoid undermining the general principle enshrined in EU law for equal treatment in employment and occupation. 

But such legal decisions have already impacted thousands of Muslim women across Europe. 

For instance in Germany, many Muslim women resigned from their teaching and civil service jobs as the court gave them the stark choice of removing their headscarves or giving up their careers. 

Bans on religious clothing and symbols for teachers and other civil servants in Germany led some Muslim women to give up teaching careers. 

In France, women wearing a niqab or burqa, which fully cover the face and body, in public space face a 150 euro fine.

Last summer, the country’s top administrative court upheld an existing ban on women wearing burkinis - the one-piece full body-covering swimsuit – in public swimming pools.

Another French court ruling of 2014, banning face coverings, emboldened the police to fine 600 Muslim women within three years. The ruling was upheld by the European Court of Human Rights. 

Similarly, many Muslim girls were robbed of their right to education as France passed a law in 2004, prohibiting the wearing of headscarves in state schools.

In its fresh ruling, the CJEU specifies that the obligation of neutrality may end up with those “adhering to a particular religion or belief being put at a particular disadvantage”. In such cases, the CJEU leaves the onus of delivering justice to local courts. 

In 2020, Austrian Constitutional Court dealt a major blow to those who oppose headscarves. In its ruling, the court overturned a ban that barred girls up to 10 years of age from wearing headscarves at school. 

The court observed the law was clearly aimed at marginalising Muslims.