Any company that bans the hijab will have to justify it in national courts and in the court of public opinion. They will fail in both, writes Faisal Al Yafai
The European hijab ban is really a victory for Muslim women
Last week, the European Court of Justice handed the far right a victory. The ruling, which agreed that employers could legally ban religious symbols, including headscarves worn by Muslim women, was touted as a great victory. It pleased far-right groups. It also pleased me. Because far from being an attack on Muslim women, the court's ruling is actually a great victory for them.
Let me be honest: I'm conflicted about this. Politics makes strange bedfellows and it has been quite a surprise to see who else has vaulted into my camp.
The argument most often espoused is that the ruling gives succour to companies that want to reduce diversity or even actively target Muslim women. It also comes in the midst of a febrile discussion in Europe on Islam, immigration and integration.
Seen like that, the ruling is a blow, a first step that will lead to removing Muslim women from private offices, before eventually removing them from the public space. It is noteworthy that the two cases on which the European Court of Justice (ECJ) ruled came from two countries, France and Belgium, that currently have prohibitions on the public wearing of Muslim veils. This is not, therefore, a purely legal argument: it has profound political implications.
I recognise all of that. But the effect of the so-called "Muslim headscarf ban" will not be as it has been reported.
What the ruling does is give companies that want to remove religious symbols the legal right to do so – as long as the policy does not disproportionately affect only some religious groups and is non-discriminatory.
It seems reasonable for an employer to specify a certain dress code, as long as that dress code is proportionate. That, by the way, was the reasoning of a British parliamentary report in January on whether women in the workplace could be compelled to wear high heels.
The report followed a high-profile case of a receptionist who was fired after refusing to wear high heels. The conclusion: companies could set their own dress codes, but those codes had to be reasonable, consistent and non-discriminatory on the basis of gender. Doubtless a national court would apply a similar test to any company banning religious symbols.
How many companies will decide to do so remains to be seen. In fact, I suspect very few will, because of the knock-on effect on other religious groups. In European countries that are more devoutly Christian, religious symbols such as the cross are common. How, in countries such as Italy or Spain, can a line be drawn between religious and cultural expression?
Because what comes next will be test cases, where companies put in place a policy and then have to justify it to the public and to national courts. My sense is that they will fail in both places.
In countries such as Italy, publics that want to maintain overt displays of the Christian faith will also have to accept extending that right to other faiths. Publics such as Britain's who are less concerned with overt displays of faith will see banning faith symbols as discrimination. National courts, too, outside of France or Belgium, which have strong traditions of lacite, will scrutinise the policies of employers and in the end will reject many of them.
After each round of these cases, in the media and in the courts, public acceptance of faith displays will increase. Thus, in the medium term, public acceptance of religious symbols will actually increase because of this ruling. Publics will feel that they have, over time, “bought into” the idea of religious symbols in public life.
I recognise that not everyone will welcome that result. Religious symbols in public life are deeply fraught; particularly in some European countries, where the wearing of religious symbols is seen as somehow an attack on national culture.
But European workplace norms are shifting – and not because of Muslims. It is millennials who are driving this change. For them, personal elements – political views, lifestyle choices – are profoundly important and they have different views on which parts of their personality need to be checked at the office door. Companies will inevitably adapt.
They are already doing so. When, two years ago, H&M, one of the largest fashion retailers in the world, featured a model in a hijab, it was reported as something socially progressive. But it makes good business sense, because so many of H&M’s customers will wear the hijab or have friends who do. They expect to see people who look like them, on posters outside the store and as assistants inside.
All of that might suggest that the ECJ decision doesn't matter that much. Yet it was still the right decision.
The ECJ said prohibiting the visible wearing of “any political, philosophical or religious sign” did not constitute direct discrimination. Would the opposite judgment have been better?
Looked at that way, I think the alternative would have been worse. If the ECJ had ruled that people’s right to wear political or religious signs must necessarily override the policies of employers, that would pave the way for overt displays of political or religious affiliation to be protected under the law. That, at the moment, is a step too far. The law must move in tandem with public opinion. And while public opinion is shifting, the overt wearing of political and religious symbols across the board is too big a leap.
That’s why the court ruling is a victory for Muslim women: it creates a space for a conversation which will eventually shift the court of public opinion.
On Twitter: @FaisalAlYafai