The ECJ’s ruling on the hijab in the workplace: Implications for Germany

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On March 14, the European Court of Justice issued a widely expected and potentially consequential ruling on the right of Muslim women to wear the headscarf in their workplace. In its decision, the Luxembourg Court appeared to grant a surprisingly wide leeway to private sector employers to restrict their workers’ right of religious freedom.

The cases under scrutiny

The cases had been brought by two Muslim women from Belgium and France, respectively, who had been fired for wearing a hijab. In the case of the French plaintiff, the Court argued that her dismissal had been illegal insofar as it had seemingly been based on the complaint of a single customer who disliked the fact that she wore the Muslim head covering.

Conversely, a workplace ban on the hijab can be compliant with European directives on anti-discrimination, religious freedom, and worker’s rights, according to the Court. Preconditions for the legality of such a ban include (a) the generalised nature of the provision so that not just the hijab but all religious symbols are targeted; and (b) the existence of good reasons for such a ban.1)See http://curia.europa.eu/juris/document/document.jsf?text=&docid=188853&pageIndex=0&doclang=SV&mode=req&dir=&occ=first&part=1&cid=333910 for the decision.

German reactions to the verdict

Muslim figures and associations in Germany have reacted with dismay to the ruling. The Central Council of Muslims in Germany (ZMD) criticised that the ruling amounted to “a renunciation of guaranteed liberty rights”.

According to the ZMD, the decision risks forcing women to decide between religious convictions and employment, meaning that constitutional guarantees of anti-discrimination and religious freedom “are not worth the paper they are written on.”2) http://zentralrat.de/28546.php The sentiment was echoed by the chairman of the German DİTİB branch, Bekir Alboğa.3) http://www.handelsblatt.com/politik/deutschland/kopftuch-verbot-islam-verbaende-kritisieren-eugh-urteil-/19515956.html

Green party politician Volker Beck criticised that the verdict was “not a good signal for freedom and pluralism”, while the Commissioner for anti-discrimination of the federal government warned that employers should be careful and sparing in prohibiting the hijab.4) https://de.qantara.de/content/eugh-erlaubt-kopftuch-verbot-im-job-aber-mit-auflagen

Legal theory vs. politicised practice

The Court’s verdict does indeed raise numerous questions. The first of them is above all practical and concerns the decision’s real-life implications. To be sure, on paper the Court’s verdict displays a considerable amount of acumen: the judges highlight, for instance, that a workplace rule on religious symbols that is “apparently neutral” on paper but in fact results in discrimination of particular beliefs is illegal.5)See http://curia.europa.eu/juris/document/document.jsf?text=&docid=188853&pageIndex=0&doclang=SV&mode=req&dir=&occ=first&part=1&cid=333910, paragraph 32

Yet it seems that here the Court simply chose to hide behind what verges on legal sophistry. As the Süddeutsche Zeitung newspaper pointed out, in its practical repercussions the verdict will almost exclusively target Muslim women since it is the hijab—rather than any other religious symbol—that has become the object of political debate in recent years.6) http://www.sueddeutsche.de/karriere/religionsfreiheit-am-arbeitsplatz-der-islam-wird-als-stoerend-betrachtet-1.3419227 Legal decisions do not occur in a political void.

Fundamental questions of rights in a capitalist economy

The second issue that the verdict raises is of a more principled nature. It is indeed striking that the ECJ saw no problem with allowing private sector employers to restrict the religious freedom of their workers while only providing the haziest of all guidelines as to when such restrictions are legitimate.

Some commentators have asserted that the verdict constitutes a victory of French-style laïcité over the kind of tolerance other Member States have continued to exhibit vis-à-vis religion in the public sphere.7) http://www.sueddeutsche.de/karriere/religionsfreiheit-am-arbeitsplatz-der-islam-wird-als-stoerend-betrachtet-1.3419227 Yet in contrast to laïcité, which is above all concerned with the public sphere of citizenship, the Court’s decision signals an empowerment of the private sector and a victory of capital over workers’ rights.

The German legal context

Within the particularities of the German context, the precise implications of the verdict are, however, not yet quite clear. Legal contestation over the headscarf in Germany has focused on the public sector. In recent years, Germany’s Constitutional Court has declared blanket bans of the hijab in this area to be unconstitutional.

Yet courts have also dealt with private sector cases. In 2002, the Federal Labour Court decided in favour of a Muslim shop assistant who had been fired because of her headscarf. Conversely, church-related (and hence confessional) private sector employers were given greater leeway to prohibit their staff from wearing headscarves in 2014.8) http://www.zeit.de/news/2017-03/14/eu-kopftuch-verbot-am-arbeitsplatz-diskriminierung-oder-nicht-14075603

Courts of lower instance have subsequently regularly—but not always—struck a comparatively permissive line, allowing the headscarf to be worn; or at least declaring that the particular prohibitions of the hijab that Muslim claimants had challenged were not legally sound.9) http://www.euro-islam.info/2016/07/15/german-hijab-debate-court-vetoes-current-restrictions-hijab-bavarian-justice-system-caveat/, http://www.euro-islam.info/2017/02/10/hijab-german-public-schools-new-court-case-lets-old-questions-resurface/

Clashing legal doctrines

For now, the ECJ’s ruling raises the spectre of differential standards in public and private sectors, with the former governed by the more liberal German provisions and the latter under the influence of the more restrictive interpretation from Luxemburg.

In the longer term, the ECJ’s decision highlights the question of a possible clash between German and European law on the matter of the headscarf.10) http://www.sueddeutsche.de/karriere/religionsfreiheit-am-arbeitsplatz-der-islam-wird-als-stoerend-betrachtet-1.3419227

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