By Saïla Ouald Chaib

The day the opinion of Advocate General Kokott in the case of Achbita v. G4S came out, my phone did not stop ringing. The press wanted to know if this opinion really meant that employers could refuse to hire women wearing a hijab. The fact that even journalists sounded surprised speaks for itself. Friends and organizations called me to know my view as a lawyer about this development in the case-law. “How can this be justified from a human rights perspective?” “What can we do to stop this?” And also: “how will I ever find a job if even a European Court backs this kind of discrimination?” These are only a few of the questions I received.

There are many aspects of these opinions that I would like to discuss. However, in light of the previous blog posts in this series, in which a technical legal analysis has already been undertaken from different angles, I will, within the limits of a short post, focus on one particular aspect, namely the perspective of the applicants and with them that of many other Muslim women, in particular in Belgium where the facts of the case of Achbita took place and where our Human Rights Centre is also based. Indeed, in complement to a strictly legal debate, it is important to understand the situation on the ground. This post should therefore be read as a companion piece to the previous post in this series written by Eva Brems, in which she gave an overview of the limiting regulations affecting Muslim women in Belgium.

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By Eva Brems

What is at Stake? The Hijab Wearer as an Outlaw

The corporate anti-headscarf policy that is challenged in the Achbita case has to be situated in the context of a country that has seen headscarf bans expand like an oil stain from one sector to the next. This results in a situation which can, without exaggeration, be termed ‘headscarf persecution’. Bans that affect mainly the Muslim headscarf are popping up in all sorts of environments, to the effect that the headscarf itself is de-normalized and is almost automatically problematized. In any context whatsoever, a real risk exists that someone will question whether the headscarf can be allowed, and a real risk exists that the answer to such a question will be negative. As a result, Muslim women who wear a headscarf in Belgium gradually become outlaws.

Belgian courts do not necessarily protect against headscarf-based discrimination, and when they do, their judgments have more than once remained without implementation. The stakes of Achbita for hijab wearers in Belgium are clear: can the expansion of the oil stain be stopped or not? Is there or is there not a limit to the activities or places from which headscarf wearers can be excluded, and to the grounds that can be invoked in support of such exclusion?

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By Emmanuelle Bribosia[1] and Isabelle Rorive[2], Université libre de Bruxelles

The Achbita and the Bougnaoui cases give a first opportunity to the European Court of Justice to address religious discrimination. Since the adoption of the anti-discrimination directives after the Amsterdam treaty, the Court ruled on a significant number of cases, mostly on discrimination based on age or gender, but also on sexual orientation, disability, race and ethnicity. Religion was not in the picture so far. As if national courts kept the issue for themselves, apart for a few cases making their way to the European Court of Human Rights.

A first opportunity that resembles a poisoned gift. Two high-profile cases, brought by the Supreme Courts of the judiciary (Cour de cassation) in Belgium and in France, which fall in ‘the Islamic veil conundrum’ that started in the late 1980s in both countries. Two countries where the principle of neutrality (or laïcité) is increasingly brandished like a flag with uncertain colours by strange bedfellows and not only as a key organizing principle of a democratic State attached to the Rule of law. Two countries severely hit by terrorist attacks made in the name of Islam and where social and political tensions are sour. And two Advocates General who have different views on some fundamental legal concepts of anti-discrimination law.

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By Matthias Mahlmann, University of Zürich

Differences and Common Ground

This is legal deliberation with an edge: the two Opinions of Advocate General Kokott in the case of Achbita (C-157/15) and of Advocate General Sharpston in the case of Bougnaoui (C-188/15) come to opposing results though dealing with cases that are, in many respects, very similar.

Whereas Advocate General Kokott regards a company rule that prohibits the wearing of any religious symbol or a symbol associated with some form of belief as a genuine determining occupational requirement that serves a legitimate aim and is proportionate, Advocate General Sharpston argues that there is no such justification.

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By Lucy Vickers, Oxford Brookes University

In this post, I focus on two issues of note regarding the divergent reasoning of the Advocates General. The first is the question of whether or not religion is immutable, and whether the answer to that question is helpful in determining the extent to which religion should be protected at work. The second is the use of ‘margin of appreciation’ reasoning, drawn from human rights case law on freedom of religion and belief, in the context of CJEU equality law.

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By Eva Brems

The Kokott-Sharpston Standoff at the Threshold to the Summer of Shame

In France and Belgium, the summer of 2016 will be remembered as the summer of the burkini debates. Numerous French municipalities banned Islamic swimgear that covers the body, and in Belgium, majority politicians called for a similar ‘burkini’ ban. The world watched with disbelief as French police chased Muslim women wearing body-covering swimwear from public beaches, or even forced them to undress in public. After the Council of State suspended such a measure in one municipality, the French Prime Minister did not hesitate to publicly criticise the highest administrative court. For those committed to combating minority discrimination, this debate was a turning point, as many proponents of a ban no longer bothered to dress it up as a measure protecting values such as neutrality, the protection of vulnerable people, gender equality or even the notoriously vague concept of ‘living together’. Many of the participants in the burkini debates felt no longer inhibited from publicly saying what it was really about for them: a dislike of Islam, and the desire not to be confronted with it. For Muslim women in both countries, this honesty about the underlying motives is probably all that distinguishes burkini bans from the bans on other types of female Islamic dress (mainly hijab and niqab bans) that they have been confronted with for decades. Yet for many observers who may not have reacted to such previous bans, the French burkini campaign was a step too far. The need for clear limits to admissible restrictions on Islamic dress has thus become keenly felt.

Shortly before the burkini row kicked off, two Advocate Generals of the European Court of Justice issued their opinions in two parallel cases of alleged headscarf discrimination. Both a Belgian and a French court asked the ECJ for guidance, through a preliminary ruling, on whether the dismissal of an employee by a private employer on grounds of her wearing an Islamic headscarf, against the employer’s dress policy, violates EU antidiscrimination law. The Opinions of AG Kokott in the Achbita case and of AG Sharpston in the Bougnaoui case reach opposite conclusions: for Kokott, there is no discrimination, for Sharpston there is. Underlying the difference in outcomes are numerous important differences in the interpretation of the Employment Equality Directive. These differences of interpretation, in turn, betray widely divergent views on the protection of the fundamental rights of minorities in Europe.

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