Doaa Elghobashy was the first Olympic athlete to compete in a hijab last year, whilst Nike has announced it will be launching its own version of the sports hijab next year. This week secular Turkey has even agreed to let female soldiers wear the hijab. But this week also has seen the announcement by the European Court of Justice (ECJ) that it is not directly discriminatory for an employer to ban the wearing of a harmless hijab (which they incorrectly call a “muslim scarf”) at work.
The ECJ has also devised a form of words so that an organization has a defence if it is accused of indirect workplace discrimination. Yet, in a less reported French case heard in conjunction with the widely reported Belgian one, the court also found that “the willingness of an employer to take account of the wishes of a customer no longer to have the services of that employer provided by a worker wearing an Islamic headscarf cannot be considered a genuine and determining occupational requirement within the meaning of the directive”. In other words, a customer’s prejudice against an employee for wearing something they disapprove does not give the right to an employer to condone their customer’s intolerance by removing them from a client-facing role.
The ECJ is wrong in declaring any dress code as neutral if it adversely affects someone because of their culture or freely held belief. The purpose of discrimination legislation is to encourage a more inclusive and tolerant society and permitting disproportionate reactions to modest variations from dress codes only reinforces xenophobic tendencies and increases the marginalization of those with middle-east origins. The hijab is the female equivalent of the keffiyeh and originates from daily life in a hot desert climate. Moreover, today it s a mark of personal modesty rather than a potent religious symbol. Judgments made in ignorance are a dangerous thing and we should not let institutions like the EJC escape reprehension when they unfairly seek to dignify disdain.
# Robin Chater was for ten years an advisor to the European Commission on equal opportunities in the employment relationship.