A Head Start on Discrimination

While this week’s ruling of the European Union’s Court of Justice (ECJ) to allow the banning under certain circumstances of Islamic headscarves (the hijab) won’t resolve the highly charged debate over the right of individuals to wear the religious garb of their choice, it once again highlights the complexity and vital importance of this issue.

The EJC determined that a Belgian firm — which had a rule barring those employees who have face-to-face dealings with customers from wearing religious and political symbols in order to project a public image of neutrality — may not be guilty of discrimination.

However, it found that a French company that dismissed a software engineer for refusing to remove her headscarf may have violated EU anti-discriminatory law if it did so in order to appease a particular client rather than as enforcement of a general internal dress code.

The court’s attempt to draw such a fine line between religious discrimination and legitimate dress codes in the workplace comes at a time of sharply rising support for such anti-immigrant politicians as Marine Le Pen in France and Geert Wilders in the Netherlands. Notwithstanding how they perform in elections, the support of millions of voters shows that the average European’s interest in these legal nuances is rapidly fading.

The EU judges are trying to preserve their cherished culture of tolerance amid a rising backlash against immigrants. Significant parts of the population seek not only an outright ban on headscarves but a rollback of liberal immigration policies, which they view as a threat to the social fabric of their countries.

The buck does not stop at the EJC. The judges in Luxembourg concluded that the dismissals of the two women may, depending on the view of national courts, have breached EU laws against religious discrimination. That means the issue will be subject to further adjudication in France, Belgium and elsewhere — and subject to further controversy.

The comment from French conservative candidate for president Francois Fillon that the ruling comes as “an immense relief” to companies and workers, and will contribute to “social peace” — while it sounds politically correct — is largely missing the point.

Others on the right have hailed it more as a blow against what they refer to as Islamic coercion. In Germany, for example, Georg Pazderski, a leader of the right-wing populist party Alternative für Deutschland, applauded the ruling, though not for reasons the judges would approve:

“The ECJ’s ruling sends out the right signal, especially for Germany,” said Pazderski. “Of course companies have to be allowed to ban the wearing of headscarves.”

On the left, Maryam H’madoun at the Open Society Justice Initiative, a George Soros-sponsored NGO, said she was disappointed by the ruling. “It will lead to Muslim women being discriminated [against] in the workplace,” she said.

It’s hard to say she’s wrong about that. Employers who are disinclined to hire hijab-wearers will no doubt seek legal shelter in such a ruling.

Beyond that, the potential ramifications for religious people of all kinds, including Jews, could be significant.

It is virtually impossible to treat the issue of the hijab in legal terms without its affecting yarmulkes as well.

A previous, non-binding opinion of EU Advocate General Juliane Kokott set the stage for the careful distinctions in this week’s decision. It also made clear that other religions have a stake in the case:

“After all, a company rule such as that operated by G4S [the Belgian services firm that fired a headscarved receptionist] could just as easily affect a male employee of Jewish faith who comes to work wearing a kippah, or a Sikh who wishes to perform his duties in a Dastar (turban) …”

Kokott was making the point that a conditional ban of this sort would be acceptable as long as it does not target Muslim women only, but would apply to male and female members of other religions as well.

For the Jewish worker who wishes to wear a kippah on the job, that is hardly comforting. What it amounts to is an equal-opportunity ban on religious garb. What happens to the hijab happens to the kippah; and if the hijab can be banned, albeit only under certain circumstances, so can the kippah.

In what must be interpreted as a bright-red warning sign for the religious liberties of European Jewry, the advocate general also pointed out that not all discrimination is equal. “While an employee cannot ‘leave’ his … skin color, ethnicity … age or disability ‘at the door’ upon entering his employer’s premises, he may be expected to moderate the exercise of his religion in the workplace.”

The assertion that — unlike “moderating” the color of one’s skin — it is possible to “moderate” practice of one’s religion in the workplace is downright frightening.