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Explained: Why the EU’s highest court has allowed employers to ban headscarves at work

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Last week, the European Union’s highest court reaffirmed that companies in Europe can ban women from wearing headscarves to work, a move that has led to widespread condemnation of human rights activists and Muslim countries for to have appeased Islamophobia.

“The decision of the European Court of Justice on the headscarf in the workplace is another blow to the rights of Muslim women wearing the headscarf and will play into the hands of these warmongers against Islam in Europe,” the spokesperson said. word of Turkish President Recep Tayyip Erdogan, Ibrahim Kalin. tweeted on Sunday.

The decision of the Luxembourg-based European Court of Justice (ECJ) was not limited to scarves alone. It applies to all visible symbols of religious and political belief. The court said the bloc’s 27 member states will have to justify whether there is a “real need” on the part of the employer to ban these religious markers.

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What led to the last judgment of the European Court of Justice?

The ruling was based on separate cases brought to court by two German Muslim women who were suspended from their jobs for wearing the hijab. The two women, one of whom worked at a daycare center in Hamburg, while the other was a cashier in a pharmacy, were not wearing a headscarf when they started working for their respective employers. They adopted the hijab after returning from parental leave.

According to court documents, the two women were told that wearing the headscarf was not allowed. The daycare worker was twice suspended after refusing to take off her headscarf, while the pharmacy worker was transferred to a less visible position, where she did not have as much to interact with customers .

The court said company policies prohibiting workers from wearing “any visible form of expression of political, philosophical or religious beliefs in the workplace” did not constitute direct discrimination as long as the same rules applied. religious symbols and clothing of all faiths.

In either case, German courts will ultimately have to decide whether women have been discriminated against.

Significantly, over five million Muslims live in Germany, making it the country’s largest religious minority. But the headscarf debate in Europe predates the latest ECJ ruling. A number of cases like these have been heard, the majority of which have been filed by candidates for positions as teachers in public schools and judges in courts.

The court ruled that employers must demonstrate a “real need” for the ban, which could be the “legitimate wishes” of customers, or to present a “neutral image towards customers or to prevent labor disputes”.

“However, this justification must correspond to a real need of the employer and, by reconciling the rights and interests in question, the national courts can take into account the specific context of their Member State and, in particular, of a more favorable national law . provisions on the protection of religious freedom, ”the court said.

What was the ECJ’s previous position on the headscarf?

The headscarf has been at the center of controversy and debate in Europe for years. In fact, the latest decision of the ECJ is founded on a similar decision it did so in 2017. Then the EU court said companies could prohibit staff from wearing visible religious symbols, including headscarves, under specific conditions. At the time, too, the decision sparked a huge uproar among activists and the Muslim world.

The headscarf debate in Europe

Over the years, across Europe, many courts have been able to impose restrictions on the wearing of religious symbols or clothing in the workplace as well as in public spaces such as parks. France, for example, banned the wearing of the hijab in public schools in 2004. Then, in 2014, the country’s highest court confirmed the dismissal of a Muslim educator for wearing the headscarf in a private school where the religious neutrality was required of all its employees.

More recently, the French Senate controversial “anti-separatism” bill sparked widespread protests, with critics denouncing to single out the Muslim community. As part of its proposed initiatives to help promote secularism, the Senate seeks to ban girls under 18 from wearing the hijab in public. The hashtag #HandsOffMyHijab has been widely shared on social media for several weeks.

Countries like Belgium, Austria and the Netherlands have also passed laws banning full face veils in public places. However, the hijab that only covers the shoulders and head is not included in these prohibitions. But the Austrian constitutional court notably ruled that a law prohibiting girls under 10 from wearing headscarves in schools was discriminatory.

In 2016, German Chancellor Angela Merkel declared that the wearing of the full face veil should be banned “wherever it is legally possible”.

How have countries reacted to the headscarf ban?

Among the strongest voices opposing the ECJ ruling are Turkish cabinet ministers. This prompted President Erdogan’s spokesman Ibrahim Kalin to ask on Twitter: “Does the concept of religious freedom now exclude Muslims?”

In an article condemning the court’s ruling, international NGO Human Rights Watch noted that the argument was based on the mistaken notion that “a client’s objections to employees wearing religious clothing may legitimately prevail. on employee rights ”.

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