Headscarves and the CJEU: Protecting fundamental rights or pandering to prejudice
| Author | Erica Howard |
| DOI | 10.1177/1023263X211028427 |
| Date | 01 October 2021 |
| Published date | 01 October 2021 |
| Subject Matter | Articles |
Article
Headscarves and the CJEU:
Protecting fundamental rights
or pandering to prejudice
Erica Howard*
Abstract
This article examines the Opinion of AG Rantos in two cases concerning Islamic headscarves
before the CJEU and argues that this Opinion appears to give almost carte blanche to (private)
employers to adopt neutrality policies in their workplaces based on the wishes of their customers.
In doing so, the AG appears to allow employers to pander to the prejudices of their customers and
to push believers, and especially Muslim women, even further out of sight. It is argued that this
affects not only the employment opportunities, but also the social inclusion of people from groups
especially vulnerable to discrimination and that this goes against the founding values of the EU. The
CJEU now has a choice: it can choose to protect the fundamental rights of religious minorities by
taking these rights into account when assessing the two cases before it, or it can allow employers
to pander to the prejudice of customers against people from religious minorities.
Keywords
Islamic headscarves, religious discrimination, equal treatment, staff regulations, private sector.
Introduction
On 25 February 2021, Advocate General (AG) Rantos delivered his opinion in two cases before the
Court of Justice of the European Union (CJEU) regarding the wearing of Islamic headscarves at
work, both originating from German national courts.
1
These cases were allocated to former AG
* Middlesex University, London, UK
Corresponding author:
Professor Erica Howard, School of Law, Middlesex University, The Burroughs, London NW4 4BT, UK.
E-mail: e.howard@mdx.ac.uk
1. Opinion of Advocate General Rantos in Joined Cases C-804/18 IX v. Wabe eV and C-341/19 MH Mu¨ller Handels GmbH
v. MJ, EUC:2021:144. On these preliminary references see: E. Howard, ‘Headscarves Return to the CJEU: Unfinished
Business’, 27 Maastricht Journal of European and Comparative Law (2019), p. 10.
Maastricht Journal of European and
Comparative Law
ªThe Author(s) 2021
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DOI: 10.1177/1023263X211028427
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2021, Vol. 28(5) 648–666
Sharpston in 2019, but after her departure from office in September 2020, they were reallocated to
her successor, AG Rantos. However, because AG Sharpston and her team had already done much
of the work for the Opinion, she wrote a Shadow Opinion as a contribution to the debate about ‘an
important and sensitive’ topic .
2
These two Opinions are very differ ent and come to opposite
conclusions in relation to religious discrimination, possible justifications which employers can
bring forward for discriminatory work rules, the scrutiny such justifications needs to be subjected
to by courts and what needs to be taken into account in this.
AG Rantos’ Opinion suggests that a private employer can adopt a policy of political, philoso-
phical and religious neutrality in the workplace in order to take account of the wishes of their
customers, even if this means that employees cannot manifest their religion or belief at work by the
wearing of clothing which they consider to be mandated by that religion. According to AG Rantos,
the employee’s right to freely manifest their religion under Article 10 of the EU Charter of
Fundamental Rights (Charter) cannot be taken into account when assessing whether such a rule,
although indirectly discriminatory, is objectively justified. This Opinion goes beyond what the
CJEU decided in two earlier case concerning headscarves at work and appears to push people from
religious minorities, and in particular Muslim women, even further out of sight. In Achbita,the
CJEU held, in relation to the justification test for indirect discrimination, that a neutrality policy
was a legitimate aim as it was part of the freedom to conduct a business, guaranteed by Article 16
of the Charter.
3
AG Rantos adds that this can be in order to take account of customers’ wishes.
However, this was not mentioned by the CJEU in Achbita, while in a case decided on the same day,
Bougnaoui, the CJEU held that the wish of a customer not to be served by someone in a headscarf
was not a genuine and determining occupational requirement.
4
In Achbita, the CJEU also consid-
ered it important that the neutrality policy should only apply to employees who interact with
customers.
5
The CJEU was criticised for restricting not only the employment opportunities, but
also the broader inclusion of a large group of people from religious minorities.
6
AG Rantos
Opinion seems to restrict this even further.
It will be argued that, if the CJEU follows the Opinion of AG Rantos, it risks making a populist
decision, allowing employers to pander to the prejudice of the majority in society against people
from religious minorities. This would lead to even more social exclusion of those groups which are
already vulnerable to discrimination because of prejudice and stereotypes. Bans on the wearing of
headscarves would have a particularly disadvantageous effect on the employment prospects and
2. E. Sharpston, ‘Shadow Opinion of Former Advocate General Sharpston: Headscarves at Work (Cases C-804/18 and C-
341/19)’, EU Law Analysis, 23 March 2021, http://eulawanalysis.blogspot.com/2021/03/shadow-opinion-of-former-
advocate.html.
3. Case C-157/15 Samira Achbita and Centrum voor Gelijkheid van Kansen en voor Racismebestrijding v. G4 S Secure
Solutions NV, EU:C:2017:203, para. 37.
4. Case C-188/15 Asma Bougnaoui, Association de Defense des Droits de l’Homme (ADDH) v. Micropole Univers SA,
EU:C:2017:204, para. 40-41.
6. L. Vickers, ‘Achbita and Bougnaoui: One Step Forward and Two Steps Back for Religious Diversity in the Workplace’,
8European Labour Law Journal (2017), p. 252; T. Loenen, ‘In Search of an EU Approach to Headscarf Bans: Where to
go After Achbita and Bougnaoui?’, 10 Review of European Administrative Law (2017), p. 67; E. Relano Pastor,
‘Religious Discrimination in the Workplace: Achbita and Bougnaoui’, in U. Belavusau and K. Henrard (eds.) EU Anti-
Discrimination Law Beyond Gender (Hart Publishing, 2019), p. 197. On these two cases and the criticism raised against
them see: E. Howard, ‘Islamic Head Scarves and the CJEU: Achbita and Bougnaoui’, 24 Maastricht Journal of
European and Comparative Law (2017), p. 348.
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Howard
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