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“I am not a racist, but . . .”: The perversity of the recent ECJ ruling on the “headscarf issue”

posted by Carlo Invernizzi Accetti

Look through the window | Image via Flickr user Hernán PiñeraIt is by now commonplace that ostensibly “neutral” language—such as the notorious preamble “I am not a racist, but . . .”—can serve to mask or justify covert forms of discrimination. Yet, this basic linguistic insight seems to have escaped the judges of the European Court of Justice (ECJ) and—perhaps even more worryingly—many advocates of “secularism” in Europe.

In a recent landmark judgment bearing directly on the long-standing European controversy over the admissibility of Islamic headscarves in various kinds of public spaces, the ECJ has ruled that it is legal for businesses to fire employees that insist on wearing the hijab in the workplace, as long as this is in compliance with a “general company policy” that forbids “the wearing of visible signs of political, philosophical or religious beliefs.”

This is an important ruling because it is the first time the ECJ has taken a position on the matter. Although both the European Court of Human Rights (ECtHR) and various national courts previously ruled on similar cases (see for instance: Ebrahimian v. France (2015) and Dahlab v. Switzerland (2001)), the ECJ is the main juridical organ of the European Union, so its rulings count as established law for all member states.

While many religious groups and advocates deplored the ruling, several exponents of the “far right,” as well as some advocates of secularism, have celebrated it is as a long-overdue clarification of the European Union’s stance on religious freedom.

To be sure, most of those who celebrated the ruling from a far-right perspective assumed rather un-problematically that the ruling was intended to target Islam in particular. For instance, the Berlin leader of the German Alternative für Deutschland, Georg Pazderski, stated that “the ECJ’s ruling sends out the right signal” since “of course companies have to be allowed to ban the wearing of headscarves.”

In contrast, secularist groups have been keener to emphasize that the ban in question was, at least ostensibly, based on a principle of “neutrality” among different religious faiths. “[W]here a ban on employees wearing religious or political symbols is founded on a general company rule of religious neutrality,” said Stephen Evans, the campaigns director at the National Secular Society in the United Kingdom, “it can’t realistically be argued that that this constitutes ‘direct discrimination.’”

It seems, however, that the exponents of the far right may in this case have a better understanding of the actual effect of the ruling than the advocates of secularism who defended it. To see why this is the case, it is necessary to enter into some of the details of the reasoning behind the judgment.

In order to reach its conclusion, the ECJ relied on a well-established distinction within the framework of European anti-discrimination law between “direct” and “indirect” forms of discrimination. As codified by the relevant European directive on “equal treatment on the workplace,” the former is assumed to obtain whenever “one person is [explicitly] treated less favorably than another . . . in a comparable situation.” In contrast, indirect discrimination is assumed whenever “an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons” (EC 2008/78, Art. 2).

As several commentators have noted, this distinction was originally introduced within the framework of the European directive for the purpose of expanding the range of practices and provisions potentially covered by it. In fact, in the specific case under consideration, the ECJ recognized that a ban on all visible signs of political, philosophical, or religious beliefs may amount to a form of “indirect discrimination,” even though it is “apparently neutral,” since it “disproportionately affects” people of certain religious creeds.

However, by providing a very particular interpretation of the conditions under which “indirect discrimination” may nonetheless be admissible, the Court effectively reversed the original purpose of this distinction, making it grounds for restricting the range of practices and provisions covered by the European anti-discrimination directive. To do this, it relied on a clause of the text which states that “indirect discrimination” must be considered a violation of the principle of equal treatment, “unless . . . it is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary” (Art 2(b)(i)).

By arguing that a business’s intention of projecting a “religiously-neutral image” on the market is a “legitimate aim” according to the terms of this provision, the court reached the conclusion that a rule banning all “visible signs of political, philosophical or religious beliefs” does not constitute a violation of the principle of equal treatment even if it admittedly involves a form of indirect discrimination.

The problem with this reasoning is that the aim of projecting a religiously-neutral image overlaps to a large extent with the way in which the notion of indirect discrimination was defined in the first place (since what makes this kind of discrimination “indirect” is precisely that it happens under the guise of provisions that are “apparently neutral”). Thus, treating this aim as “legitimate” under the terms of the European directive on “equal treatment” means that virtually all forms of “indirect discrimination” are legitimate.

Indeed, it becomes very difficult to even imagine a form of “indirect discrimination” that would not be considered legitimate by such a standard, since it seems to follow, almost by definition, that all “apparently neutral” provisions aim to project a “religiously-neutral image.” Far from reaffirming the European Union’s commitment to the principles of religious neutrality, the judgment in question therefore severely weakens the bite of Europe’s anti-discrimination law.

Moreover, the reasoning clearly does not apply only to the so-called “headscarf issue.” If admittedly indirectly discriminatory practices are now allowed in the workplace as long as they are justified by “apparently neutral” provisions, one could imagine all sorts of ways in which specific employees could be unfairly but legally treated because of their religious beliefs, age, level of ability, or gender orientations. Think for instance of a provision banning child-bearers from employment on the ground that a business has a right to project a “gender-neutral” image on the market.

If such a proposal sounds outlandish it is because the dominant political drive today is to increase—rather than decrease—the protection from discrimination of women on the workplace. However, this gets to why they exponents of the far right who hailed the ECJ’s latest ruling may have a better understanding of its concrete effects than the so-called secularists who praised it.

In a context in which nationalist and explicitly anti-Muslim forms of populism are on the rise everywhere in Europe, the ECJ’s ruling effectively gives a free hand to employers to engage in “indirectly discriminatory” practices, as long as this occurs under the guise of “apparently neutral” provisions.

To the extent that advocates of secularism are committed to the principle of “religious neutrality” in fact as well as in principle it is therefore a mistake for them to hail this judgment. This is only a victory for those who are interested in justifying new and increasingly insidious forms of anti-Muslim discrimination in Europe.

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