European court’s ruling on hijab in workplace is legally-sanctioned discrimination

Azad Ali, Head of Community Development & Engagement at MEND, argues that today’s ruling by the European Court of Justice that employers may ban the hijab in the workplace is legally-sanctioned discrimination that will adversely affect working Muslim women.

Among vociferous arguments advanced by certain British Muslims during last year’s EU referendum was the prospect of the continent’s institutional Islamophobia gradually creeping into the UK and undermining our legislative framework protecting against discrimination on grounds of religion.

“We’re better off out!” Brexit protagonists declared, pointing to the raft of proscriptions enacted by EU member states with the expressed intent of discriminating against Muslims while purporting to uphold abstract principles such as secularism or liberal neutrality. From bans on the building of new minarets to legislation prohibiting the wearing of “conspicuous symbols” in classrooms, there’s nothing inconspicuous about socially engineering Muslim integration through prohibitions on religious expression.

What to make then of the ruling by the European Court of Justice (ECJ) today which justifies active discrimination against Muslim women who wear hijab in the workplace on grounds that it may violate a company’s policy on “political, philosophical, and religious neutrality?” Moreover, what to make of the basis of the complaint brought by one petitioner, Micropole, whose claim rests on the diktat of a customer who wished not to deal with a Muslim employee?

I can hear the bellows of laughter from Muslim Brexiteers as loudly as I can sense their remonstrative “I told you so’s.”

Legally-sanctioned discrimination

It’s a good litmus test to ask, on face value, whether a company faced with a customer who refused to deal with a female employee or a black employee would have required a petition to reach as far as the European Court of Justice before calling out bigotry among its clientele for what it is? Is it appropriate for business to tout for custom among those who think they have a right to determine an employer’s diversity policy?

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To be sure, the Equality Act 2010 enshrines protection against direct or indirect discrimination on grounds of religion though the shrinking budget of the Commission for Equality and Human Rights and its largely retrospective analysis on equality as outcomes for Muslims and other protected groups renders the protections something of a benign principle than the active pursuit of institutionalising diversity in our multi-ethnic, multi-religious society. No one wants to come into work and feel like they don’t want to be there. Now it makes more sense when people look into using the services of an employment discrimination lawyer as a last resort. There’s only so much someone can take. Plus, no matter what religion, race or gender you are, no one deserves to be discriminated against.

European Court of Justice

We need a more robust implementation of the public sector equality duty and the rigorous adoption of positive action by the private sector to advance equality as outcomes than is currently evident. The recently announced (Department for Business, Energy & Industrial strategy) “Top 100 Best Employers” workplace diversity initiative is a decent contribution to these aims but these together cannot supplant the relevance of the law, in letter and spirit, which is key to the development of a human rights culture that is respectful of religious freedoms.

It’s easy to forget that the category of religion as a protected characteristic in UK anti-discrimination law came from the adoption by EU Member States of the very directive which today is being used to justify denial of workplace rights to Muslim women. When in January 2003, the Employment Equality Framework Directive was enacted in the UK, it was a major achievement for British Muslims who had long argued that Race equality legislation left them exposed when faced with discrimination on grounds of religion. The hostile climate in the UK at the time took a dim view of legal protection against discrimination on grounds of religion.

Not for the first time, the European courts have undermined the spirit of the law and thereby contributing to a culture of legally-sanctioned discrimination against Muslims by interpreting fundamental rights in such a way as to reinforce hierarchies of culture, power and economic advantage.

Muslim women

It is very telling that the claimant in one case is a Muslim receptionist. Occupying low-level jobs is a problem shared by Muslims across Europe with many of those from migrant background concentrated in low-paying jobs. Rather than examine the difficulties experienced by Muslims in the labour market, the ECJ has revisited a Muslim woman’s disadvantage upon herself by upholding a company’s policy of requiring “political, philosophical and religious neutrality” in customer facing roles.

Needless to say, those most likely to be affected by the ruling are those who find themselves at the mercy of a labour market that actively discriminates against them, at top and bottom.

Muslim women are the main victims of Islamophobia.

There is much that will be written in the coming days about the fallacy of “neutrality” and the impossibility of divorcing dress codes from “political, philosophical and religious neutrality.” Everything we wear – men and women – is a statement of our political and philosophical selves. Can you imagine a company dictating whether employees should wear the line of a current designer whose offering may be considered “political” or “philosophical?” It’s not a moot point – New York Fashion Week showcased a number of designers whose clothing bore explicitly (anti-Trump) political slogans. Are these to be considered off limits for workplace attire?

As for the notion of “neutrality,” it’s a byword for institutionalised cultural racism that notices the difference in others against the canvas of a majority culture that is assumed to be value-free. It’s a deception masquerading as “value-neutrality.”

Nadia Eweida case

There is a further dimension to the culture wars evident here that is worthy of comment. In January 2013, the European Court of Human Rights upheld a claim of indirect discrimination against British Airways employee Nadia Eweida in a move which prompted the Equality and Human Rights Commission to publish new guidelines for employers.

Eweida contested the company’s policy to “project a certain corporate image” as discriminating against her right to wear a crucifix. What is fascinating in the context of the claims to “neutrality” espoused now is how vociferously Eweida’s case was received as a victory for Christians. Neutrality, in other words, is supportive of a secular orthodoxy that undermines the rights of religious believers. No less than David Cameron tweeted his support for Eweida’s victory stating “delighted that principle of wearing religious symbols at work has been upheld.”

But here is the jaw-dropping irony of all this. G4S was awarded a government contract to run the Equality Human Rights Commission’s (EHRC) advisory helpline. The move has been resisted by human rights campaigners for a number of reasons. How on earth can G4S run the service here while discriminating against Muslims abroad? The EHRC can start by reviewing their security contracts with G4S, starting with the revocation of the contract to run the Equality and Human Rights Commission’s advisory service helpline.

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