The Court of Justice for the European Union ruled on November 28 that employers can institute a purely “neutral” workplace and exclude hijab-wearers from it. The case centered around “OP,” an attorney working for the Belgium government, who applied to wear a hijab in her place of employment with the municipal authority in 2021.
This isn’t the first time the Court has denied hijabi women their religious freedoms. The last time the court made a ruling was in July 2021. They claimed a prohibition on the display of religion “may be justified by the employer’s need to present a neutral image towards customers or to prevent social disputes,” indicating that the hijab is aggressive in nature or causes arguments.
This ruling left more up to individual interpretation, but the municipal authority told OP “Any form of proselytising is prohibited and the wearing of overt signs of ideological or religious affiliation is prohibited for any worker.”
Muslim clothing, including hijab, invites the curious to learn about Islam and makes it a form of proselytizing.
According to EU Law Live, OP’s place of employment, “amended Article 9 of its terms of employment to prohibit workers from wearing any overt sign revealing their ideological or philosophical affiliation or political or religious beliefs.” They did so after OP filed for permission to wear the headgear.
OP therefore sought a declaration from the Court of Justice showing “that her freedom of religion has been infringed and that she has been the victim of discrimination.”
“OP brought several sets of proceedings before national courts, seeking a declaration that the municipal authority had infringed her freedom of religion, and brought an action for an injunction on 26 May 2021, seeking a finding of discrimination on the grounds of religion and gender.”
This was also denied.
The “choice” she and other Muslim women now have is to not wear hijab in the workplace, if their employers have issues with it, or simply not to work.
The Court says in a statement that neutrality should be implemented, but it leaves individual, state courts to interpret how. “Each Member State, and any infra-State body within the framework of its competences, has a margin of discretion in designing the neutrality of the public service which it intends to promote in the workplace, depending on its own context. However, that objective must be pursued in a consistent and systematic manner, and the measures adopted to achieve it must be limited to what is strictly necessary.”
It negated the fact that such a ruling would affect women predominantly, even though they admitted the “prohibition appears mostly to affect women.”
Luckily for those in the EU, there is an alternative. German activist Hanan Challouki started hijabisatwork.com, as a “bridge that connects talented hijab-wearing women with forward-thinking employers who celebrate diversity.” The platform contains a database of companies who have an inclusive policy towards those who wear hijab.
There is no similar listing for hijabis in the United States, but neither is the situation quite as extreme. Employers can, however, reject hijab-wearers if they present undue hardship for the business, according to the American Civil Liberties Union.
Accommodation for wearing the hijab at work “is not reasonable if it will cause your employer an undue hardship (for example, if it compromises safety or would impose more than minor costs on the employer),” states the ACLU. “This determination is very fact-driven and whether you have a legal claim for the denial of an accommodation will depend on both the circumstances of your particular situation and those of your employer.”
On the other hand, the EU Court of Justice states there is “a margin of discretion in designing the neutrality of the public service which it [the employer] intends to promote in the workplace, depending on its own context.”
This presents a very wide scope of “discretion.”
IP Correspondent
