The Protection of Muslim Women ‘freedom of religion’ in the Workplace

The interacting social characteristics of religion and gender is a prevalent issue in the workforce market that has exposed a weakness of the protection of Muslim women. Despite the consolidation of the European Convention on Human Rights (ECHR) and the European Union’s (EU) Charter of Fundamental Rights (CFR) in national legislations and the repeated denunciation of discrimination against minorities, such provisions have often perpetuated inequitable environments for Muslim women rather than safeguarding their rights. 

The European Communities Council Directive 2000/78 (Employment Equality Directive), which establishes a general framework for equal treatment in employment and occupation, is the primary policy governing workplace discrimination based on religion or belief, age, disability and sexual orientation. However, the different legal interpretations often lead to inconsistencies in its application, disproportionately affecting Muslim women.

This research article explores the right to freedom of thought, conscience and religion under Article 9 of the ECHR and under Article 10 of the CFR, alongside the prohibition of discrimination under Article 14 of ECHR and Article 21 of the CFR. Moreover, the right of equality between men and women will be critiqued under Article 23. By adopting a socio-legal approach, this study analyzes relevant and intersectional case law in Europe to reveal the weak application of equality and anti-discriminatory provisions to the interaction of religion with gender, highlighting  the importance of acknowledging Muslim women’s right to religious freedom as a fundamental component in a modern-democratic society.  

The right to ‘freedom of religion’ under Article 9 of the ECHR and Article 10 CFR

The right to freedom of religion under Article 9 of the ECHR and Article 10 CFR is a fundamental pillar of democracy. Nonetheless, Muslim women’s right to express their faith in the workplace has been increasingly restricted through headscarf bans across Europe. Although the freedom to practise one’s religion is enshrined under ‘the Convention’ and ‘the Charter’, these bans have been justified on grounds such as security and secularism, also aligning with other democratic principles and national laws (Ast and Speilhaus, 2012). As a result, employers may dismiss or prohibit those wearing hijabs to ensure identification and maintain a neutral, non-religious environment, thereby jeopardising Muslim women’s right to religious expression.

There is no harmonised approach to religious expression in Europe, leading to fluctuating protections for Muslim women (Bhargava, 2014). Both private and public sector employers enforce neutrality, but the concept of neutrality itself remains ambiguous. Who defines it, and what biases inform these definitions?  

We can all agree to the fact that the decision-maker’s values and beliefs could influence their perception of neutrality. According to the Open Society Justice Initiative report (2022), most EU countries’ bans and rules on face veils and headscarves have been promoted primarily by nationalist movements and far-right political parties.  Court rulings on workplace neutrality policies, especially wearing hijabs, vary significantly across Europe. 

In case U 2000.2350 Ø, (Danish Supreme Court) and in case E.F. v. SA Club, (Belgian Labour Court), both involving Muslim women wearing the headscarf in the workplace, the courts similarly ruled that labour policies of a religious-neutral workplace are not discriminatory, concluding that such dress codes were objectively justified and proportionate. This justification is based on the assumption that neutrality prevents workplace chaos from religious expression. Conversely, other courts in Germany, the Netherlands, France and Belgium have, in some cases, upheld Muslim women’s rights ruling that those ban practices were discriminatory and disproportionate, unless a “genuine need” could be justified. In Lachiri v Belgium (2018), the European Courts of Human rights   considered whether the headscarf impairs job performance rather than focusing on neutrality. These cases underscore the lack of harmonisation in European legal frameworks, where secular principles frequently supersede religious freedoms.

Proportionality is a core principle of Human Rights law and  EU law. A provision that is otherwise discriminatory may be lawful if it is a proportionate means of achieving a legitimate aim (Lane and Ingleby, 2018). This principle creates the space for employers to have the freewill to impose requirements on their personnel, such as a specific dress code, if proportionate and necessary. Under Article 9(2) of the ECHR, religious freedom can be restricted if ‘prescribed by law’ and ‘necessary in a democratic society’ for public safety, order, health, or protecting others’ rights. Similarly, under Article 10(2) of the CFR this right may be only regulated ‘in accordance with the national laws governing the exercise of this right.’ Therefore, the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) have interpreted these provisions in ways that often disadvantage Muslim women. 

In the landmark case, IX v Wabe eV (2021), two German employees were prohibited from wearing headscarves due to workplace neutrality policies. The CJEU ruled that a workplace ban on religious symbols can be justified if they meet the employer’s genuine need. 

In Ebrahimian v France (2015), a Muslim woman employed as a contractual social worker at a public hospital, Ms. Fatima Ebrahimian, had her contract not renewed because she refused to remove her veil (hijab), which was considered a breach of religious neutrality in the public sector. French courts upheld the hospital’s decision, ruling that public employees must maintain neutrality and abstain from displaying religious symbols. Similarly, the ECtHR ruled that there was no violation of Article 9 of ‘the Charter’, and that a Muslim hospital social worker’s contract could be lawfully terminated for refusing to remove her veil in a public space, prioritising France’s constitutional secular principle (Article 1 of the French Constitution). At the end, this ruling failed to apply an intersectional approach considering gender and religious discrimination. 

However, in Bougnaoui v. Micropole SA (2017), the plaintiff was a Muslim woman, who had been recruited by Micropole, a French IT consulting company, as an intern and later as a Design Engineer. The woman was dismissed by letter from Micropole detailing that a customer had informed them that Ms Bougnaoui was wearing a headscarf while performing services for the customer and that this had upset a number of the customer’s employees. Her employer reinforced the principle of neutrality due to Ms Bougnaoui’s customer-facing position. The CJEU judgement was that a customer’s discomfort to a worker’s religious clothing (headscarf) may not be grounds for a discharge, ruling it discriminatory. The court highlighted that to enforce the requirements of neutrality at work, it must be objectively determined by the nature or context of the work, rather than subjective preferences of the employer or customer.

These cases were referred to the CJEU by the French Court of Cassation to clarify whether such prohibitions constitute discrimination under the Employment Equality Directive for establishing a general framework for equal treatment in employment and occupation, when such treatment may be justified, and what factors must be considered in assessing its legitimacy (Gronemeyer, 2021). The rulings explicitly illustrate the courts’ inconsistent approach to religious discrimination in employment. 

Hence, the lack of a uniform structure has created insecurity for Muslim women who wear hijab and that they may feel compromised in their working environment. Through some rulings by the EU high courts the right to religious expression at work has been reaffirmed, and in others the employer’s stance in establishing a neutral image has triumphed over this right, de facto restricting the Muslim women’s religious identity. This uncertainty undermines the principle of equality and aligns with the growing Islamophobia and far-right movements in Europe.   

The ban on the existence of religious symbols has caused muslim women’s religious freedom to erode. The power of majority within legislative powers has created restrictions imitating implicit Islamophobic trends, making it harsher for Muslim women to oppose discrimination. The cover-up of neutrality disguises workplace discrimination, which has continuously snatched away Muslim women’s freewill but instead forced them to choose between faith and employment (Haq, 2022).

Non-discrimination under Article 14 of the ECHR and Article 21 CFR

The principle of neutrality has increasingly been weaponized to justify the erosion of Muslim women’s rights. While Article 14 of the ECHR and Article 21 of the CFR prohibit discrimination, courts have often failed to recognize the intersectionality between gender and religion.

Whilst the ECHR does not enshrine the right to employment and the CFR does, this places the individual technically in two different points. The ECtHR has held that Article 8, the right to private life and a family as a gateway to that right of employment (Emmert and Carney, 2017). The ECHR have sometimes invoked Article 8 (right to private and family life) to bridge this gap, reinforcing the need for an intersectional approach in discrimination claims.

For example, an employee can complain that a public authority employer’s dress code policy interferes with an employee’s right to wear their headscarf hence it would activate Article 9 and Article 10. This argument may sustain, if the rule also disproportionately affects Muslim women, litigants can consider pleading a breach of Article 9 and 10 in conjunction with Article 14 and 21. 

In Begum and R (on the application of X) v Headteachers and Governors of Y School (2006), a student who wore a jilbab instead of the required school uniform was removed (Idriss, 2005). The student’s legal counsel argued only a breach of Article 9 of the ECHR instead of Articles 9 and 14 to therefore expose the intersection of gender and religious freedom. Domestic courts must interpret anti-discrimination law compatible with the Convention, including Article 14 where relevant (Renzulli, 2023). An intersectional analysis would encourage courts to assess the disproportionate impact of dress codes on Muslim women, exposing their lack of protection in the workplace. However, the intersectional approach is not firmly established in the Court’s doctrine. In S.C.R.L. v L.F (2002), a Muslim woman was denied an internship for refusing to remove her headscarf under a company’s neutrality policy. The CJEU ruled that a universal ban on religious symbols is not direct discrimination but may be indirect discrimination if it ‘disproportionately disadvantages a group without objective justification’. It is evident that the Court failed to address intersectional discrimination, hence reaffirming neutrality while ignoring the combined impact of gender and religion.

Whilst the courts try to enforce a homogenous application in the assertion of religious discrimination, this consequently forgets many other groups and creates a one-size fit’s all approach. Instead of the law to regulate Directive 2000/78 for the protection of all employees this has been formulated into structural discrimination. 

Some studies have proven that the chances of being hired and so gainfully employed were 40% lower among Muslim women wearing the hijab than they were among, otherwise similar, Muslim women not wearing the hijab in the west (Ahmed and M. Gorey, 2021). The wearing of Islamic clothing is regarded to be a tool of oppression for women and girls who wear these, because, it is asserted, they are imposed on them by men, be they spouses, family, communities, religious leaders or the state (McGoldrick, 2006). The wearing of the veil is thus seen by many as an infringement of a woman’s right to equality with men.

The right to equality between men and women of religion Article 23 CFR

The factor of gender plays a significant part in this assessment of Muslim women’s protection in the workplace. Article 23 of the CFR explicitly inserts gender equality, yet policies disproportionately affect Muslim women, reinforcing a patriarchal control over their bodies and choices. The perception of Islamic dress as a symbol of oppression rather than personal choice has influenced legal decisions. 

There is a significant lack of recognition in the interaction of religion and gender. This contact serves as the principal of each of the disparity in the employment prospects of Muslim women. The hijab is worn only by women as an expression of the Islamic belief to dress modest (Butler, 2012). The expectations relating to socialising and networking among male colleagues are relevant to the experiences of Muslim women. Therefore, their experiences in the workplace should not be equated to the ones  of Muslim men, or of non-Muslim women.

In Dahlab v. Switzerland (2001), a primary school teacher was banned from wearing her headscarf while teaching . The party argued that a Muslim man in her position would not experience the same limitation, whereas a woman from the same religious background would not be allowed to practise the same religion. This has opened policies to uncover the relation of there being a dictatorship over Muslim women’s bodies. The ECtHR considered that the headscarf was contrary to equality, placing Muslim women in an uncomfortable position between upholding their religious identity and sustaining their integrity. This mirrors the Court’s inability to be sympathetic in handling cases of indirect discrimination.

This level of control by policies and the court has demonstrated a lack of understanding of cultural and religious identity, consequently failing to appreciate intersectionality. Institutions with this level of power neglect the perspective and the harms Muslim women face on a state and local level. Therefore, this has allowed the court to place gender equality against personal autonomy (Radacic, 2008)

The existence of the headscarf is assumed to be oppressive and a patriarchal form of submission by European courts (Minority Rights Group, 2024) Whilst in reality, a majority of women wear it as an act of faith, protecting their modesty and dignity. European courts often frame headscarf bans as a means of promoting gender equality, yet these restrictions marginalize Muslim women instead of empowering them (Radacic, 2008).

The assumption that veiling is inherently oppressive ignores the voices of Muslim women who wear it by choice. It is clear that the courts have not engaged in research in Islamic but rather a surface level image filled with prejudice and stereotypes. In addition to this, the courts have blindly led with a centralist European Christian view than with gender equality. The linkage of the headscarf to misogyny in order to justify the headscarf ban to salvage gender equality is deeply alarming (Radacic, 2008). 

The state has the obligation to eliminate prejudices and practices rooted in gender inferiority, but it should do so by empowering women through education, employment, and combatting discrimination (Bilge, 2010). This cannot be achieved by restricting their choices. The vigorous machine of prohibiting Muslim women from wearing the headscarf does not liberate them but rather inflicts restrictions, which would only lead to further exclusion and marginalisation (Haleem, 2015). Although the rationale is for women to participate equally in certain spaces, this may cause women to retreat from civic engagement. 

In Şahin v Turkey (2005), the ECtHR stressed ideas of a negative impact of not wearing the headscarf, and its political significance in Turkey.  The court’s Eurocentric analysis reinforced stereotypes, portraying Muslim women as victims of oppression or instruments of fundamentalism (Hoopes, 2006).

In S.A.S. v. France (2014), the Court evaluated and upheld France’s ban on the full-face veil . It upheld France’s full-face veil ban, arguing that it impeded ‘living together’ and social cohesion. This decision disregarded Muslim women’s personal autonomy, suggesting that their clothing choices threaten societal harmony (ASIL, 2017) Muslim women can be positioned from “triple to quadruple jeopardy” of experiencing discrimination in employment and in other important structures of society. (Ahmed & Gorey, 2021) Their intersecting social identities significantly include other oppressed groups: as women, they remain marginalised in most workforces, but additionally as Muslims, they are religious minority group members in the West, and the vast majority of them are members of ethnic and racialized minority groups of colours. Furthermore, Muslim women who wear the headscarf or hijab may be particularly targeted as they are easily visually identifiable, whereas Muslim men may more invisible pass such religious identification. Hence, they have different sets of experiences and status in society (Ahmed & Gorey, 2021).

In Achbita v. G4S Secure Solutions NV (2017), The CJEU identified that the purpose of Directive 2000/78 was to combat discrimination and promote the equal treatment of citizens. The Directive was guided by the ECHR and the CFR, which recognised the right to freedom of religion. It also made further reference to supplementary international conventions that acknowledged the right to equality before the law and in employment including the Universal Declaration of Human Rights (UDHR); the United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW); United Nations Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights (ICCPR); and Convention No 111 of the International Labour Organisation (ILO) (Columbia Global Freedom of Expression, 2017).Despite European courts’ role in ensuring practical and effective rights, national courts have abstracted the headscarf’s meaning, thus disintegrating their religious identity. In conclusion, Muslim women still experience compounded discrimination as women, religious minorities, and racialized individuals, often facing greater barriers to employment (Ahmed & Gorey, 2021).

Conclusion 

The protection of Muslim women in the workplace remains weak. The notion of keeping workplaces neutral has been used as a shield to allow employers to practise discrimination. This approach has extended to creating a western saviour complex, where it appears that institutions are trying to liberate muslim women from wearing the hijab but instead are stripping them of their identity. Courts have prioritised political and secularist agendas over religious freedom, weaponizing neutrality to justify discriminatory policies. The lack of intersectional analysis in European Human Rights law has allowed implicit Islamophobia to shape legal interpretations, forcing Muslim women to choose between their faith and employment. True gender equality cannot be achieved by restricting religious expression; rather, it must empower women by protecting their right to choose. Moving forward, European courts must acknowledge the intersection of religion and gender to ensure meaningful protections for Muslim women in the labor market.

References

Ahmed, S., & Gorey, K. M. (2021). Employment discrimination faced by Muslim women wearing the hijab: exploratory meta-analysis. Journal of Ethnic & Cultural Diversity in Social Work, 32(3), 115–123. https://doi.org/10.1080/15313204.2020.1870601

Amnesty International. (2024, July 16).  France: Hijab bans in French sport expose discriminatory double standards ahead of Olympic and Paralympic Games. https://www.amnesty.org/en/latest/news/2024/07/france-hijab-bans-olympic-and-paralympic/

Ast, F., & Spielhaus, R. (2009).  Tackling Double Victimisation of Muslim Women in Europe: The Intersectional Response. Mediterranean Journal of Human Rights. https://www.um.edu.mt/library/oar/bitstream/123456789/126927/1/Tackling%20double%20victimization%20of%20Muslim%20women%20in%20Europe_an%20intersectional%20response.pdf 

Bhargava, R. (2014).  How secular is European secularism? European Societies, 16(3), 329–336. https://doi.org/10.1080/14616696.2014.916335

Bilge, S. (2010). Beyond subordination vs. resistance: An intersectional approach to the agency of veiled Muslim women.Journal of Intercultural Studies, 31(1), 9–28.  https://doi.org/10.1080/07256860903477662

Butler, V. (2012) Ethnic Minority Female Unemployment: Black, Pakistani and Bangladeshi Heritage Women. APPG on Race and Community: First Report of Session 2012-2013. London, UK: Runneymede Trust

Columbia Global Freedom of Expression. (2017, April 25). Achbita v. G4S Secure Solutions – Global Freedom of Expression. Global Freedom of Expression.  https://globalfreedomofexpression.columbia.edu/cases/achbita-v-g4s-secure-solutions/ 

Dube, N. (2023).  Not just another Islamic headscarf case: LF v SCRL and the CJEU’s missed opportunity to inch closer to acknowledging intersectionality. European Law Blog.  https://doi.org/10.21428/9885764c.0912a1bc

Emmert, F., & Carney, C. P. (2017). The European Union Charter of Fundamental Rights vs. The Council of Europe Convention on Human Rights and Fundamental Freedoms – A comparison. Fordham International Law Journal, 40(4), Article 1. https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2674&context=ilj

Frederique, A., & Spielhaus, R. (2012). Tackling double victimization of Muslim women in Europe: The intersectional response. https://ncpe.gov.mt/wp-content/uploads/2023/06/paper_muslim_women.pdf

Freedman, J. (2008). Human rights and religion: The Islamic headscarf debate in Europe. French Studies, 62(1), 120–121. https://doi.org/10.1093/fs/knm249

Gronemeyer, B. (2021, August 19). The future of free religion: Muslim women in the workplace.  St Andrews Law Review. https://www.standrewslawreview.com/post/the-future-of-free-religion-muslim-women-in-the-workplace

Haleem, A. (2015). Covernance: Feminist theory, the Islamic veil, and the Strasbourg Court’s jurisprudence on religious dress-appearance restrictions. DePaul Journal of Women, Gender and the Law, 5(1).  https://via.library.depaul.edu/cgi/viewcontent.cgi?article=1023&context=jwgl

Haq, M. (2022) The War on Muslim Women’s Bodies: A critique of Western feminism. (2022).  Georgetown Immigration Law Journal | Georgetown Law. https://www.law.georgetown.edu/immigration-law-journal/blog/the-war-on-muslim-womens-bodies-a-critique-of-western-feminism/

Hoopes, T. (2006). The Leyla Şahin v. Turkey case before the European Court of Human Rights. Chinese Journal of International Law, 5(3), 719–722. https://doi.org/10.1093/chinesejil/jml037

Idriss, M. M. (2005). R (Begum) v Headteacher and Governors of Denbigh High School: A case note. Judicial Review, 10(4), 296–302. https://doi.org/10.1080/10854681.2005.11426448

Kalantry, S.  and Pradhan, M. (2017) Veil bans in the European Court of Human Rights | ASIL https://www.asil.org/insights/volume/21/issue/15/veil-bans-european-court-human-rights

Lane, J. A., & Ingleby, R. (2017).  Indirect discrimination, justification and proportionality: Are UK claimants at a disadvantage? Industrial Law Journal, 47(4), 531 – 552.  https://doi.org/10.1093/indlaw/dwx009

Minority Rights Group. (2024, January 12). Dahlab v. Switzerland – Minority Rights Group. https://minorityrights.org/dahlab-v-switzerland/

Open Society Justice Initiative Policy Report. (2022).  Restrictions on Muslim women’s dress in the 27 EU member states and the United Kingdom: Current law, recent legal developments, and the state of play. Open Society Foundations. https://www.justiceinitiative.org/uploads/0b300685-1b89-46e2-bcf6-7ae5a77cb62c/policy-brief-restrictions-on-muslim-women%27s-dress-03252022.pdf

Radacic, I. (2008). Gender equality jurisprudence of the European Court of Human Rights. European Journal of International Law, 19(4), 841–857. https://doi.org/10.1093/ejil/chn044

Renzulli, I. (2023).  Discrimination and gender stereotypes in judicial decisions: The jurisprudence of the European Court of Human Rights in light of JL V Italy – A retreat into the shadows? Netherlands Quarterly of Human Rights, 41(3), 155-173. https://doi.org/10.1177/09240519231191172

Velthuis, E., Verkuyten, M., Van Der Noll, J., & Smeekes, A. (2022).  Tolerance of the Muslim headscarf: Perceived reasons for wearing a headscarf matter. International Journal of Intercultural Relations, 90, 86–96. https://doi.org/10.1016/j.ijintrel.2022.07.009

Case law

Belgian Labour Court in Brussels. (2008) R.G.No 48.695, Mme Y. E.F. v. SA Club. Equal Rights Trust.  https://www.equalrightstrust.org/sites/default/files/ertdocs//Y.E.F.%20v.pdf 

Østre Landsret. (2000) Case U 2000.2350 Ø.

Court of Justice of the European Union. (2017). Case C-188/15, ​​Asma Bougnaoui, Association de défense des droits de l’homme (ADDH) v. Micropole SA. EUR-Lex. https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX:62015CJ0188

Court of Justice of the European Union. (2021). Case C-804/18, IX v. WABE eV. EUR-Lex. https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX:62018CJ0804

Court of Justice of the European Union. (2022). Case C-344/20. L.F v. S.C.R.L.EUR-Lex. https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:62020CJ0344 

Court of Justice of the European Union (2017) Case C-157/15. Samira Achbita and Centrum voor gelijkheid van kansen en voor racismebestrijding v G4S Secure Solutions NV. EUR- Lex. https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:62015CJ0157 

Danish Supreme Court Case 2000.2350 Ø.

European Court of Human Rights. (2015). Ebrahimian v. France, no. 64846/11. HUDOC. https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22001-159070%22]}

European Court of Human Rights. (2001). Dahlab v. Switzerland no. 42393/98.  HUDOC.  https://hudoc.echr.coe.int/eng#%7B%22itemid%22:%5B%22001-22643%22%5D%7D

European Court of Human Rights. (2018). Lachiri  v. Belgium no. 3413/09. HUDOC.  https://hudoc.echr.coe.int/eng#%7B%22itemid%22:%5B%22001-186245%22%5D%7D

European Court of Human Rights. (2005). Leyla Şahin v. Turkey no. 44774/98. HUDOC. https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22001-70956%22]}

European Courts of Human Rights.(2014). S.A.S v. France no. 4385/11. HUDOC. https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-145466%22]} 

UK House of the Lords (2006) UKHL 15 R (on the Application of Begum) v Headteacher and Governors of Denbigh High School. Parliament Publications. https://publications.parliament.uk/pa/ld200506/ldjudgmt/jd060322/begum.pdf