For many individuals, religion constitutes an integral aspect of their identity. However, members of certain groups are oftentimes obliged to renounce certain parts of this identity, at least temporarily, for instance at work or in other social settings. This reality has turned into a debate regarding the legality of the prohibition of wearing religious symbols, and Islamic headscarves specifically.
The prohibition of wearing religious symbols in the workplace was recently assessed in the European Court of Justice (ECJ). On 25 February 2021, Attorney General Rantos delivered his opinion on the joint cases of C-804/18 and C-341/19, and former Advocate General Eleanor Sharpston, also provided an insightful shadow-opinion on this matter.
Surprisingly, the two opinions are conflicting both in regard to the interpretation of the non-discrimination clause in Directive 2000/78 and the conclusion on whether such a prohibition is justifiable.
THE CASES AND THE CONFLICTING OPINIONS
Both cases concerned women employees of Muslim faith, both based in Germany, who chose to wear the Islamic headscarf (hijab) at their workplace. The employers had adopted a neutrality policy, according to which no religious symbols were allowed at the workplace. Although the women were instructed by their employers to remove their headscarves, they did not comply with this request. The disputes ended up in court.
The referring courts in Germany recognised that such a prohibition is an established indirect unequal treatment and asked the ECJ whether this rule can be justified if all visible religious signs are prohibited, whether of small or large scale.
AG Rantos made a distinction between small-scale and large-scale symbols, and concluded that, as long as the prohibition applies only to large-scale signs and is implemented in a consistent and systematic manner, it is justifiable. Nevertheless, it is questionable whether all symbols of religious beliefs have alternatives that enable believers to “choose” to wear a smaller-scale symbol of equal importance and functionality.
Former AG Sharpston has interestingly noted that such a prohibition may risk resulting in a tripling of discrimination against women on the grounds of sex, race, and religion. She also rightfully emphasised the fact that the Muslim women in the referred cases did not try to persuade their customers or their fellow employees to follow their religion but had simply chosen to wear the hijab to comply with their religious obligations. Hence, she concluded that such a prohibition runs contrary to the non-discrimination clause of Directive 2000/78.
The two opinions are remarkably conflicting. They are contrary to each other, as they arrive at different conclusions regarding whether the measures result in discrimination. This divergence reflects the existing debate in Europe regarding religious symbols, and especially the hijab. Several countries in Europe seem to agree on banning head coverings—and especially full-head ones—in the name of secularism and neutrality. Moreover, wearing an Islamic headscarf may be a reason to be charged and be punished with a fine in several countries in Europe.
FREEDOM OF RELIGION VERSUS SECULARISM
Requiring individuals to segregate an integral part of their personality, and in effect choose between alternate versions of their identity in order to fit the secular and neutral model, requires individuals to deny their identity because of their religion.
Essentially, the prohibition of one’s right to manifest his or her religion (without causing harm to anyone) is being normalised. However, the non-discrimination clauses that can be found in the human rights treaties prohibit discrimination on the ground of religion, amongst other things. Such a prohibition admittedly constitutes indirect discrimination, as it results in unequal treatment, mostly against Muslim women, who wear religious symbols that cannot be hidden. The issue is whether this treatment is justifiable.
The jurisprudence of the European Court of Human Rights (ECtHR) has been disappointing so far regarding the interpretation of secularism or the limits of its application. In particular, the ECtHR has recognised a wide margin of appreciation for member states and has, in more cases than expected, accepted that a ban on wearing religious symbols is justifiable in a democratic society and in a pluralistic world. The cases of Leyla Sahin v. Turkey (2005) and S.A.S. v. France (2014) exemplify the Court’s tolerance of the prohibitions on wearing religious symbols.
Paradoxically, in both AG Rantos’ opinion and ECtHR jurisprudence, the neutrality or secularist model is adopted within the interpretation of what a “democratic society” means, and what “pluralism” requires. The Oxford English Dictionary defines pluralism as “the presence or tolerance of a diversity of ethnic or cultural groups within a society or state”. If such tolerance is only subjected to the rules made by the majority, then pluralism is always one-sided.
An over-simplistic interpretation of the principle of non-discrimination for the sake of “neutrality,” especially in conjunction with a deeply exclusivist secular approach, undermines the scope of the freedom of religion, and constitutes a refusal to accept the existence of a kind of diversity which the Western world should respect.
Nayia Christodoulou is a Human Rights Law Researcher, currently pursuing her LLM in Human Rights Law at the University of Nottingham. She holds an LLB and a Minor in Philosophy from the University of Cyprus. Nayia is also an International Human Rights Reports Assistant at the Human Rights Law Centre in Nottingham.