A Real Head Scratcher: The European Court Of Justice Allows Companies To Ban Religious Wear

A recent ruling by the European Court of Justice (ECJ) has allowed employers to prohibit employees from wearing garments that indicate their political or religious beliefs. The ruling is not terribly surprising; much of Western Europe has implemented full or partial bans on head coverings in the past few years. Yet broad bans of religious garments tend to ignore people’s religious freedom. It is far more useful to find a middle path.

According to a report by the Pew Research Center, government limitations on religious activity in Europe have increased significantly since 2007, with limitations in North and South America increasing at a similar pace. These limitations tend to disproportionately affect Muslims, and specifically Muslim women, who may wear either hijabs or  burqas in accordance with their beliefs.

Some parts of Europe and the Western world, such as France and Quebec, Canada, have interpreted secularism in a way that curbs the use of religious garb. The United States honors secularism as well, but our approach to religious expression is different. Still, there has been controversy over head garb in the United States, most notably in the House of Representatives. With the election of U.S. Rep. Ilhan Omar (D-Minn.), Democrats in the House sought to reverse a 181-year-old ban on hats. The ban had nothing to do with religion. Its origins are murky, but it might have been a reaction to hat-wearing traditions in the British parliament. It was partially reversed in 2019, allowing any religious head garb to be worn.

The question of if or when religious wear should be curbed presents an interesting conundrum in the United States. Although it is important to indicate that the U.S. government is free of religious influence, it is equally important to defend citizens’ fundamental right to religious freedom, so long as it is not used to harm others. Americans United seeks to walk this line. We understand that the golden mean the United States should strive for is to protect religious freedom but never allow it to be a license to discriminate against others. We also accept that in some applications, such as public schools, religious garb that presents proselytizing messages may be curtailed. In a commercial setting, religious garb may be permitted, depending on context or circumstances.

The ECJ has tried to strike a balance as well. The ban on religious wear can only occur if there is a “genuine need” on the part of the employer (for instance, if a school wants to indicate to parents that their children are being cared for by people without obvious religious affiliations). The ECJ also indicated that any ban must respect national legislation around freedom of religion. Nonetheless, critics have asserted that the measure will harshly affect Muslim women and perhaps spur anti-Islamic sentiment. 

While bans on head-coverings or other religious garb may come from an understandable place – such as trying to preserve secularism in government and education – sweeping prohibitions can ignore important nuances and infringe on other fundamental rights. Even British Prime Minister Boris Johnson, who railed against Muslim religious garments in an acidic 2018 opinion article, admitted that a ban on burqas is “not the answer.” That sentiment is still true today.