September 20, 2016
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.
Limitations as the rule and freedom as the exception
One paragraph of the opinion written by Advocate General Kokott in the case of Achbita particularly struck me:
in the specific case of a headscarf ban, we should not rush into making the sweeping assertion that such a measure makes it unduly difficult for Muslim women to integrate into work and society. Ms. Achbita’s case in particular makes this readily apparent. Ms Achbita worked as a receptionist for G4S for approximately three years without wearing an Islamic headscarf at work and was thus fully integrated into working life as a Muslim woman, despite the headscarf ban. It was not until after more than three years of working for G4S that she insisted on being allowed to come to work in a headscarf and, as a result, lost her job. (124)
After reading this paragraph, I questioned the extent to which Advocate General Kokott is aware of the importance of the issue at stake in this case and of the problematic situation that Muslim women face on the ground. The assertion in the above-quoted paragraph denies and minimalizes the problems faced by Muslim women in practice. This statement insinuates that as long as Ms. Achbita did not wear a headscarf, everything was fine, so in general we should conclude that in practice there are no problems with the “integration of Muslim women into work and society”.
To give an example of why this is an oversimplification of the issue at stake and a denial of the problems faced by Muslim women in practice, I would like to refer to the case of Samira. In January 2016, this young woman, a teacher, was unsuccessfully looking for a teaching job for a long time. One day, she decided to send her CV for the second time to a school that had, at the time of her first application, not invited her to interview for a job. This time, however, she replaced her name on the CV with the name of Cécile. Very quickly, she (as Cécile instead of Samira) was invited to participate in a job interview. The headscarf was not the problem in this case, as Samira would not even stand a chance of working in a school while wearing a headscarf; in this case, she was not invited for a job interview purely on the basis of her name.
The example of Samira shows that the problem of discrimination is much broader than discrimination on the basis of religious manifestations. But let us assume that removing the headscarf would be the solution in a case such as Achbita, as was insinuated by Advocate General Kokott in the opinion cited above. In that case, the question can be asked: a solution for whom? I know several women who have decided to remove their headscarves in the workplace in the absence of an alternative solution. Two years ago, for example, I met a woman in my own workplace, a member of the janitorial staff to be more specific. She came to me and asked me whether employers (in her case, a private cleaning company) are allowed to ask their employees not to wear religious signs. She explained that every day, when she arrived at our buildings, she removed her headscarf so that she would be allowed to clean. Every day anew, she had to undergo the same humiliating moment of having to leave an important part of herself at the door. The only reason why she was going through this situation is because she could not find any other job, and she had a family for whom to care. Sure, this woman was admitted into the workplace as an employee, but was she fully admitted as a person? Was she “integrated” into society? I think the question here is rather: is society sufficiently “integrating” her?
I therefore totally agree with Advocate General Sharpston here in the case of Bougnaoui, who writes:
to someone who is an observant member of a faith, religious identity is an integral part of that person’s very being. The requirements of one’s faith – its discipline and the rules that it lays down for conducting one’s life – are not elements that are to be applied when outside work (say, in the evenings and during weekends for those who are in an office job) but that can politely be discarded during working hours. Of course, depending on the particular rules of the religion in question and the particular individual’s level of observance, this or that element may be non-compulsory for that individual and therefore negotiable. But it would be entirely wrong to suppose that, whereas one’s sex and skin colour accompany one everywhere, somehow one’s religion does not. (par. 112)
During the past years, we have observed a growing generation of Muslim women who are leaving school with a diploma, ready to participate in and contribute to society. Ironically, while Muslim women who wear a headscarf were initially (and often still today) labeled as oppressed, voiceless, etc., today, while proving the opposite through education and professional capabilities, they are not only facing glass ceilings as women, but they are facing concrete ceilings as Muslim women. Paradoxically, the more visible Muslim women become in society and the more they try to participate through work, education and even volunteering, the more limiting measures are imposed on them.
While the cases of Achbita and Bougnaoui concern the workplace, we should not forget that, before reaching the job market, Muslim women have already traveled a long road filled with unwanted hurdles along the way. On 30 August 2016, for example, two second-year information technology students were denied access to the building of their adult education institution on the day of their exams. The reason was that, from this year on, the institution decided (without communicating this to its students) to ban all religious signs from its premises for reasons of neutrality. As if the stress of their exams was not enough for these students already.
In the past years, I have also been asked questions by young Muslim girls regarding whether they will be allowed to study at the university if they wear a headscarf. I find these kind of questions very confronting. They made me realize that, in the course of the past decade, because of the confrontational debates and because of the many existing limitations for Muslim women, be it in the job market, in education, at the entrance of gyms, restaurants, ice-cream parlors, swimming pools and now even at the beach, a climate is created which has instilled in the minds of many young Muslim women the idea that limitations are the rule and freedom is the exception. Because of this context, bright young students are making educational and career choices not only on the basis of their dreams and talents and aspirations, but also on the basis of a mental checklist containing the limitations and the ceilings they have to take into account, among which are the jobs they will not be able to exercise without putting aside an important part of their personality.
While some refuse to make preventive choices and refuse to let their career paths be defined by limiting regulations, and instead decide for example to pursue their dreams in other countries where they are evaluated on the basis of their capacities in the first place, others have no choice than to change course. A former fellow law student, for example, whom I will call Imane, did not take into account when she started her law studies that the dream which led her to study law in the first place, namely becoming a practicing lawyer, would not be so self-evident because of the fact that she wears an Islamic headscarf. Indeed, in a large part of Belgium, court regulations already stipulate that practicing lawyers are not allowed to wear religious signs. Imane therefore changed her career plans after having successfully obtained her law degree. How ironic is it that, no matter how qualified you are as a lawyer, even if you have obtained a PhD in law, in the end the decisive element for being admitted to the bar is your appearance? It is argued that neutrality is the rule in the courtroom. But how does this apply to practicing lawyers who by definition, are not neutral given that they only represent one party, namely their clients.
In sum, whether or not someone is fully “integrated into work and society” does not only depend on the particular person concerned, who might or might not wear an Islamic headscarf. As soon as this person takes all of the steps necessary in order to participate in society and as soon as this person has the required capacities for a certain job, and there are no objective reasons why particular religious signs are not allowed, society should also ask itself how it can fully include all members of society. This brings me to a second observation, concerning prejudices about Muslim women.
The vicious circle of prejudices about Muslim women
Another part of the reasoning in the opinion of Advocate General Kokott that I find highly problematic is her argument that
it is essential not least to avoid the impression that external individuals might associate with G4S itself or with one of its customers, or even attribute to the latter, the political, philosophical or religious beliefs publicly expressed by an employee through her dress. (par. 95)
The day before I started writing this blogpost, one of my close relatives was harassed by a stranger in front of a café terrace in a central square of a big Flemish city on a sunny day. The man, passing by on his bike, screamed at her and her sister that they were “dirty people”. They were both simply enjoying their day, like many other people, but also happen to wear an Islamic headscarf. One day later, a friend related to me that she was asked to leave a public swimming pool because her trousers (which were made of bathing suit fabric) were longer than her knees, and therefore violated the pool’s regulations. Since this particular experience, she has decided to no longer join her family on their trips to the swimming pool, and instead asked her husband to take their baby swimming from now on. Other stories of women being insulted and harassed, sometimes even physically, in the streets are well-known. One might ask what these examples have to do with the cases of Achbita and Bougnaoui, since they do not relate to the workplace. In fact, in my view, there are more connections with the cases than might be assumed at first sight.
The above-quoted paragraph of the opinion written by the Advocate General in the case of Achbita summarizes one of the main arguments made in that opinion, which is that the possible prejudicial preferences of clients can trump the right of an employee not to be discriminated against on the basis of her religion. In other words, the fact that clients might take offence at religious signs worn by employees and that, due to this, the corporate image of the employer might presumably be affected, gives the employer the right to ask employees not to wear religious signs. This reasoning accepts prejudicial ideas about people on the basis of their appearance as a justification for unequal treatment of employees. Or, in the words of Advocate General Sharpston in the case of Bougnaoui:
Here, I draw attention to the insidiousness of the argument, ‘but we need to do X because otherwise our customers won’t like it’. Where the customer’s attitude may itself be indicative of prejudice based on one of the ‘prohibited factors’, such as religion, it seems to me particularly dangerous to excuse the employer from compliance with an equal treatment requirement in order to pander to that prejudice. (Par. 133)
I totally agree with Sharpston’s argument that “the business interest in generating maximum profit should give way to the right of the individual employee to manifest his religious convictions.” Indeed, how does this reasoning differ from the situation where Muslim women are denied access to restaurants, ice-cream parlors and beaches because they might offend other customers or other beach visitors? (I refer to the previous post by Eva Brems for a broader discussion of these existing cases.) If this reasoning is accepted by the ECJ, it will open the door to even more serious limitations for Muslim women. This kind of reasoning totally neglects the rights and the perspective of the Muslim women concerned. If they are considered as equal citizens, and thus as part of this society in which they participate, or at least try to participate, then their rights and freedoms would not and should not be limited based on the feelings and prejudices of others alone. Next to even more limitations towards Muslim women, it is also difficult to anticipate what will come next. Imagine an employee’s name is Mohammed. Let’s assume Mohammed is Muslim. Is an employer allowed to impose on Mohammed to use another name in his communication with clients to avoid that clients would associate the company with the assumed religion of the employee?
Additionally, my main concern with all these limitations is the following: they uphold each other. Harassment towards Muslim women and limitative regulations targeting Muslim women are often based on stereotypes, prejudices or, at least, wrong assumptions. To name a few: Muslim women wearing a headscarf are “not neutral”, they are “provocative” and “extremists”, they “want to impose their religion on others”. These stereotypes are often held by people who do not know even a single Muslim, and all the limiting regulations in schools, in the workplace and in semi-public places like gym facilities and restaurants, will not likely change this. These kinds of regulations lead to the fact that very few people interact with Muslim women in normal day-to-day situations. As long as these women are made invisible in normal situations, stereotypes and stigmatization will prevail. And as long as stereotypes prevail, limitations will remain and even expand. As a result, the circle of prejudices around Muslim women will never disappear. If the ECJ accepts the permissibility of unequal treatment towards employees of Muslim faith on the basis of the merely possible prejudices of clients, this might cause a dangerous explosion of discrimination in the private workplace, meaning that even fewer job opportunities will be available to Muslim women, and thus also fewer opportunities to interact.
Where do we want to go as a society?
In the opinion written by the Advocate General in the case of Achbita, she states that “the bar set for justifying differences of treatment based on religion is high but not insurmountable.” (Par. 78) As if a way to justify this discrimination must absolutely be found. These cases are, however, about more than a technical legal interpretation of how a difference in treatment can be justified. These cases ultimately concern the question of the kind of society in which we want to live: a society that excludes or a society that includes. The bar set for reaching the latter is high, but I wish to believe that it is not insurmountable.
 See for example ENAR, Forgotten Women: The impact of Islamophobia on Muslim Women, 2016 at http://www.enar-eu.org/Forgotten-Women-the-impact-of-Islamophobia-on-Muslim-women, Amnesty International, Choice and Prejudice: Discrimination against Muslims in Europe at https://www.amnesty.org/en/documents/EUR01/001/2012/en/ and OSCE, Jobs for Immigrants (Vol. 2): Labour Market Integration in Belgium, France, the Netherlands and Portugal Summary and Recommendations. Belgium, 2008. http://www.oecd.org/migration/mig/41707374.pdf
 I placed the word ‘integrate’ between quotation marks because I am quoting the opinion in Achbita, but also because I oppose the use of the word “integration”, since both the case of Achbita and the case of Bougnaoui concern European citizens who are, per definition, an integral part of society. However, this is a separate debate.
 C-157/15, Samira Achbita and Centrum voor gelijkheid van kansen en voor racismebestrijding v. G4S Secure Solutions NV, Opinion of Advocate General Kokott, 31 May 2016, § 112.
 C-188/15, Asma Bougnaoui and Association de défense des droits de l’homme (ADDH) v. Micropole SA, Opinion of Advocate General Sharpston, 13 July 2016, § 133.