Headscarves and the wrong balance: neutrality and business v freedom of religion and non-discrimination

To date, the CJEU has decided 6 cases concerning women who wanted to wear a headscarf at work for religious reasons but who were prohibited from doing so by their employer, losing their jobs as a consequence. Achbita, Bougnaoui, Wabe and Müller, LF and OP. There was no evidence that the wearing of the headscarf in any way prevented them from doing their job. Apart from OP, all other cases concerned private employers and here the freedom to conduct a business as recognised by Article 16 of the EU Charter of Fundamental Rights played an important role. The judgments in these five cases suggest that the employer’s right under Article 16 can trump the right of the employee to freedom of religion as guaranteed by Article 10 of the EU Charter. In OP, where the employer was a municipal council, the CJEU held that the principle of neutrality of the public service can do the same. Although the CJEU made some general and abstract comments about the importance of freedom of religion, it did not really address what the bans, in practice, meant for the individual women involved. Neither did the CJEU pay any attention to the possibility that these neutrality rules could constitute sex, race and/or intersectional discrimination. The CJEU thus provide little protection for the rights of headscarf wearing Muslim women.

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