Cases C‑804/18 and C‑341/19 - The False Neutrality of Anti-Intersectional Interpretation

 

Introduction

This case note seeks to examine the joint ruling of the Court of Justice of the European Union (CJEU) in cases C-804/18 (WABE) and C-341/19 (MH).^[1] This judgment saw the CJEU follow the jurisprudence of its counterpart, the European Court of Human Rights (ECtHR), in determining that an employer could impose a ban on the wearing of religious headscarves, provided such a ban was imposed for ‘legitimate reasons’.^[2]

This allowed for the suspension of the two applicants, who had been barred from the workplace until they removed their headscarves, to be upheld subject to the scrutiny of national courts. The CJEU will hence be criticised for the absence of an individualised and intersectional approach to their interpretation of the headscarf ban. It will be argued that the CJEU has upheld a binary and westernised perception of gender equality that serves to exacerbate the marginalisation of Muslim women across Europe.  The conclusion will be that the Court has relied on a false narrative of religious neutrality to intertwine discrimination into an overarching stucture of interpretation that fails to put class-conscious intersectionality at its core. 

Facts and Ratio Decidendi

The case concerned two Muslim women who had been suspended from their place of work as a result of their refusal to remove their Islamic headscarves. Their workplaces, consisting of a childcare centre and a pharmacy respectively, had policies of religious neutrality that prohibited the wearing of any religious symbols while the employee was performing their duties. The applicants claimed that their suspension was a violation of the EU Equality Framework Directive,^[3] which stipulates that employees should be treated equally in the workplace and not be discriminated against on the basis of religion or belief, disability, age or sexual orientation.^[4] The CJEU had previously ruled in 2017 that companies could place a ban on religious dress in the workplace,^[5] provided such a ban was an aspect of an internal policy of secularism and there was no direct discrimination against those who would otherwise manifest their religious belief.^[6] The question in the present case was therefore whether the Court would expand on this ruling to confirm that employees could be suspended or otherwise disciplined for attempting to demonstrate their religious belief in the workplace.

In ruling in favour of the employer the Court determined that a failure to comply with a religious neutrality policy could constitute a legitimate justification for suspension. The CJEU did not consider that a policy banning religious manifestation in the workplace could constitute direct discrimination against the applicants.^[7] Further, this policy would not be interpreted as indirect discrimination where the employer could demonstrate a ‘genuine need’ for its existence and such a policy was applicable towards all religious symbols.^[8] In light of the ‘legitimate wishes’ of the employers' customers and what the Court deemed the ‘adverse consequences’ were the policy not to be implemented,^[9] it was held that there had been no indirect discrimination.

Analysis of judgment

The Agency Argument - The Flawed Circular Logic of the CJEU

In upholding the employers’ policy, the Court adopts a distinctly anti-individualist approach to its interpretation of the effects of the ban. Rather than examining the effects of the ban on the applicant, they consider whether the employer had a ‘legitimate’ reason for excluding them from their workplace.^[10] There is no reference as to whether the applicants faced any limitations on their autonomy due to an order obligating them to choose between discarding their religious garments or returning to the workplace. While it is noted that employers need to demonstrate a ‘genuine need’ for religious neutrality,^[11] this need is not balanced with broader considerations of whether it deprives the employee of agency. In particular, it takes no account of the gendered considerations at play, with there being no attempt to reconcile the advocacy for an ‘objective justification’ of the ban with the subjective desire of the women to manifest their religious belief.^[12] 

It is submitted that this contributes to the somewhat circular logic of the CJEU. By stating that religious neutrality is an objective justification in itself, the Court is merely stating that religious neutrality can be upheld because it upholds religious neutrality. In this sense, individuals are deprived of the choice of whether or not to wear the headscarf due to the Court subordinating their individuality in favour of what they perceive to be a self-evident value.  However, the reality is that these considerations are being formulated from a narrow perspective largely aligned to an approval of traditionally secular values. While some of this narrow view can be correlated with the deference shown by the CJEU to national courts, it results in a relatively lacking interpretation of equality. 

Westernising Gender Equality - Interpretation through Ignorance

Unlike similar judgments determined by the ECtHR,^[13] there is no specific discussion of the impact of this decision on gender equality. While the Court acknowledges the arguments of the applicants that the ban could discriminate on the basis of gender,^[14] it fails to place these arguments into context or engage with how the wearing of a headscarf impacts on this principle, whether a ban is in place or otherwise. 

In some ways this surface-level approach to gender equality is positive. Unlike by the ECtHR, there is no flawed discussion of how the wearing of the headscarf allegedly has a ‘proselytising’ effect or hampers the feminist movement in pursuing full equality.^[15] This leaves open the possibility for a more focused discussion in future. However, it results in the traditional view of Western feminism on the headscarf being indirectly supported by the judgment. This is due to the latter’s perception of the headscarf as a threat to women’s expression.  Women's empowerment, as perceived through the lens of western feminism, correlates secularism's suppression of religious expression to the capacity of a woman to express their individuality.^[16] According to this view, women being free of religious symbols in public spaces allows for greater freedom as a whole and thus it is worth sacrificing the elements of individuality a religious person may seek to manifest were such a ban to be otherwise deemed unlawful.^[17] By associating religious neutrality with legitimacy and objectivity, it is argued that the CJEU has implicitly accepted this interpretation of gender equality while side-stepping the problematic language of the ECtHR.

It is contended that this interpretation of gender equality, or rather the lack of discussion that embeds this interpretation, results in several difficult-to-reconcile outcomes. Firstly, it implies a Muslim woman lacks the agency to make a free decision and should be subject to the whims of her employer to determine the extent to which she can be ‘free’ of what western feminism perceives as an ‘oppresive’ object. Secondly, it upholds and imposes a majoritarian view of equality. The average German citizen can work free of concerns surrounding their ability to express individuality in the workplace. However, the religious minority must conform with the desire to remove symbols in order to avail of the same opportunities. In other words, the version of equality that is preferred by the majority is the one that is upheld by the Court, regardless of its arguably worse impact on a disaffected minority. This has a particularly gendered impact in light of the minority affected being Muslim women.^[18] Finally, it implicitly substitutes the individuality of the affected women with the Court’s version of neutrality, which as has been argued above is infused with subtle connotations of Westernisation. The intersectional impact of this interpretation will be discussed below. 

The Absence of Intersectional Interpretation

It is striking that the CJEU fails to consider the intersectional impact of its rulings. For example, it has been noted that headscarves tend to be worn in Germany by those predominantly from immigrant or working class backgrounds.^[19] This means that those barred from the workplace through this policy have their existing social circumstances exacerbated through the inability to access the financial and social capital associated with employment. The binary perception of a Muslim woman as someone who can remove the headscarf  without experiencing adverse social consequences, or financially afford to stay out of a ‘neutral’ workplace through having superior economic resources, results in interlocking structures of oppression being reinforced through the inadvertent closure of avenues of social mobility.^[20]At no point does the Court adopt this sense of class-consciousness; nor does it acknowledge that interlocking structures of discrmination can serve to complicate their focus on ‘neutrality’.

Where there is some discussion of the ruling's intersectional impacts, the CJEU largely fails to comprehend why such an interpretation could serve to redefine the final outcome of their ruling. For example, the Court notes that the bans predominately affect ‘almost exclusively female workers who wear a headscarf because of their Muslim faith’.^[21] However, they argue that the legitimate aim of religious neutrality,^[22] taking into account external factors such as the wishes of customers and potential adverse consequences, outweighs the disproportionate impact on an already disaffected minority. The mention of adverse consequences is particularly interesting in that they are granted a certain premium consideration within a business context, yet no comparable consideration is given to the negative impact on Muslim women. This reflects a perception of the headscarf as something that can be discarded without any external consequences - a perception which, it is submitted, ignores the intersectional impact of this decision, whether compulsorily under a workplace policy or even voluntarily.^[23] 

The False Narrative of Religious Neutrality

At the core of this judgment lies the belief that a policy of religious neutrality in the workplace is legitimate in the sense that it affects all minorities equally. It is argued that this adopts an overtly westernised concept of secularism without taking into account the afore-outlined intersectional impacts. The most prominent example of this is through the Court’s comparison of the ban’s impact on the applicants with that of a Christian employee who was asked to remove a religious cross under the same policy. The Court uses this example to argue that there is no discrimination in the sense that all religions are being treated equally.^[24] However, this glosses over the fact that the Christian cross is not considered mandatory for a woman to wear, nor does it occupy a comparable cultural space as an Islamic headscarf.^[25] Further, Christianity has a more traditional base of understanding within Germany, that implies a higher degree of social capital for a traditionally Western believer being asked to temporarily remove an element of her faith.^[26]By contrast, the Muslim woman, lacking this element of tradional understanding and respect for her beliefs, is arguably further undermined by the threat of suspension for attempting to manifest a fundamental aspect of her religion. The equivocation between the Christian cross and the Islamic headscarf lacks any sense of nuance or understanding beyond the drawing of a crude correlation. 

Further, there appears to be no understanding of the interaction between a policy of religious neutrality and the compounding of class barriers. While the Christian employee can remove their cross without overt fear of cultural isolation, the Muslim woman is not necessarily in the same situation, in light of potential external pressure on her to conform with cultural norms.^[27] Denying the latter access to the workplace unless she rejects those cultural norms may leave her incapable of being exposed to broader concepts of diversity in the workplace, both through her own addition of diversity to the workplace and through exposure to colleagues of varying social backgrounds.^[28] Ironically this would run counter to the broader objectives of the EU, thus rendering the conclusion of the CJEU somewhat at odds with the ideal of pluralistic Europe.^[29]

The result is that while the Christian employee retains her community status, the Muslim woman may always be at risk of losing or at best redefining her status within either community. Thus, the legitimacy of religious neutrality is undermined by the fact that religious neutrality cannot be considered to reflect the practical reality of existing as a social and religious minority. The CJEU’s failure to examine this reflects a misinterpretation of principles grounded in an outdated understanding of equality. 

Conclusion

In conclusion, the CJEU has come to a result grounded in outdated and Westernised perceptions of religious neutrality and gender equality. There has been no account taken of the agency of the women, the intersectional impacts of a ban on headscarves or the resulting exacerbation of social cultural and socio-economic barriers. The result is a regressive judgment that may soon see itself challenged as individualised intersectional interpretations of equality come to the fore of social movements.^[30]

 

[1] C 804/18 and C-341/19 IX and MJ v Germany [2021] ECR.

[2] ibid.

[3] Equality Framework Directive 2000/78/EC Articles 3, 8 and 11.

[4] ibid.

[5] Case C-157/15. 2017.

[6] Rafael Jose, ‘Freedom of Religion in the Workplace v. Freedom to Conduct a Business, the Islamic Veil Before the Court of Justice: Ms. Samira Achbita Case’ (2017) European Papers.

[7] C 804/18 and C-341/19 IX and MJ v Germany [2021] ECR 55.

[8] ibid 30.

[9] ibid 65.

[10] ibid 30.

[11] ibid 64.

[12] ibid 65.

[13] Leyla Sahin v Turkey (2005) 44 EHRR 99 GC and Dogru v France (2008) 49 EHRR 179.

[14] C 804/18 and C-341/19 IX and MJ v Germany [2021] ECR 30.

[15] ML Chakim, ‘The margin of appreciation and freedom of religion: Assessing Standards of the European Court of Human Rights’ (2020) The International Journal of Human Rights 850.

[16] Christine Laborde, ‘State Paternalism and Religious Dress Code’ (2012) International Journal of Constitutional Law, 398.

[17] Benjamin Bleiberg, ‘Unveiling the Real Issue: Evaluating the European Court of Human Rights’ Decision to Enforce the Turkish Headscarf Ban in Leyla Sahin v. Turkey’ (2005) 91 Cornell L. Rev. 129  130.

[18] Fatima Seedat, ‘Islam, Feminism, and Islamic Feminism: Between Inadequacy and Inevitability’ (2013) Journal of Feminist Studies in Religion 29, 25.

[19] Vasiliki Chalkiadaki, 'L'Affaire du Foulard Islamique a l'Ecole: L'ecole Laique en Crise' (2010) Freiburg L Students J 1.

[20] Sara Salem, ‘Feminist Critique and Islamic Feminism: The Question of Intersectionality’ (2013) The Postcolonial Journal 1.

[21] C 804/18 and C-341/19 IX and MJ v Germany [2021] ECR 59.

[22] C 804/18 and C-341/19 IX and MJ v Germany [2021] ECR 31.

[23] (n 20).

[24] C 804/18 and C-341/19 IX and MJ v Germany [2021] ECR 55.

[25] Rosemary Radford Reuther, ‘Sexism and Misogyny in the Christian Tradition: Liberating Alternatives’ (2014) Buddhist-Christian Studies 34, 83.

[26] Michael O'Sullivan, ‘Religion, Modernity, and Democracy in Central Europe: Toward a Gendered History of Twentieth-Century Catholicism’ in Central European History, 52(4), 713-730 (2019).

[27] ibid.

[28] Markus Thiel, ‘Understanding Diversity In The European Integration Project’  (1st edn, Palgrave Macmillan, 2009).

[29] ibid.

[30] Anna Keuchenius, ‘Intersectionality on the go: The diffusion of Black feminist knowledge across disciplinary and geographical borders’ (2021) Br J Sociol.