On 15 July 2021, the European Court of Justice (CJEU) ruled that companies in the European Union (EU) can ban workers from wearing the hijab in certain circumstances. The court ruled that a ban on wearing religious clothing "may be justified by the employer’s need to present a neutral image towards customers or to prevent social disputes".  

The CJEU's decision was made following a referral of two cases both brought by Muslim women in Germany. Both were suspended from their jobs for refusing to remove the hijab at work. While neither woman wore the hijab when she started working at her respective company, both began wearing it when they came back from parental leave.

The ban is not limited to Muslim women who wear the hijab but extends to any person "wearing any visible form of expression of political, philosophical or religious beliefs in the workplace". There are concerns that the ban could restrict the freedom of expression and religious belief for all.

The CJEU previously ruled in March 2017 that companies may ban employees from wearing the hijab and other visible religious symbols, which prompted a backlash from faith groups. The recent ruling has produced a similar response but what impact does the recent ruling have on human rights? 

ISLAMOPHOBIA AND LIMITING THE RIGHT TO RELIGIOUS FREEDOM

There is growing concern surrounding the spread of Islamophobia across Europe and, more broadly, related to restrictions on religious freedoms as the continent becomes increasingly secular. In May 2018, Denmark passed a law to ban the wearing of face-coverings in public, which disproportionately impacts Muslim women who wear the burqa or niqab. Earlier this year, in March, Switzerland voted in a referendum to ban the wearing of face coverings in public. The ban was met with criticism that it would further "stigmatise" and "marginalise" the Muslim community in Switzerland. Austria, Belgium, Bulgaria, and France have all banned women from wearing the burqa or niqab. 

The CJEU's recent ban on religious clothing has been criticised for exacerbating existing Islamophobia. Turkish cabinet ministers have condemned the recent ruling. Ibrahim Kalin, spokesperson for the Turkish president, Recep Tayyip Erdoğan, explained that it would "play right into the hands of those warmongers against Islam in Europe”. The communications director for the Turkish president, Fahrettin Altun, called it “an attempt to grant legitimacy to racism".

Dictating what an individual can or cannot wear and, in particular, restricting the right to wear religious clothing is increasingly a controversial human rights issue. The recent ruling has sparked outrage among human rights organisations. Human Rights Watch (HRW) commented that the ban has "dented" the "protection of religious freedom" and in particular the religious freedom of Muslim women.

HRW added that Muslim women should not have to compromise their faith to work for an organisation and choose one over the other. Other commentators share the same concern that this would result in Muslim women having to choose between their religion and their careers.

The ruling does put in place some safeguards to protect persons. There has to be a "genuine need" for a company to prohibit a Muslim woman from wearing a hijab, for example, and strong evidence is required to show that neutrality is essential and not merely preferential. In more progressive countries, this may protect Muslim women from Islamophobia. However, as the European Network Against Racism has explained on social media, it will justify “the exclusion of Muslim women, who are increasingly portrayed as dangerous for Europe in the collective narrative". 

The ruling will negatively impact other religious faiths and their members’ rights to religious freedom. The CJEU has stated that the ruling is not discriminatory providing that it applies equally to other expressions of religion or belief. The ruling may lead to restrictions on the religious freedom of Christians who wear the cross, Jewish men who wear the kippah, and Sikh men who wear the turban.

The CJEU's ruling and recent changes in legislation across Europe will encourage those inciting Islamophobia. The right to adopt religious garments is in many Muslim women’s eyes vital to the practice of their faith. However, various commentators and human rights organisations have highlighted that the impact of these bans extends beyond Muslim women, though they are disproportionately affected. Religious freedom is a universal right applicable to everyone: if it is taken away from Muslim women, then how long before it is taken away from other religious groups?

Lawrence Rickard is a Human Rights postgraduate (UCL) and researcher who is passionate about current affairs, international development, human rights and technology. His main areas of interest include the right to freedom of thought, belief and religion, and the right to freedom of expression.

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