On the 12th of June, 2006, a private undertaking in Belgium called G4S fired an employee, Samira Achbita. She had been working as a receptionist there for three years. Her dismissal was attributed to an “unwritten rule” prohibiting the wearing of any religious, political, or philosophical symbols in the workplace. The next day after her firing, a written rule was established in the employee code of conduct that materialised the unwritten rule.
Three years later, on the 22nd of June, another private undertaking in France also fired one of their employees. Asma Bougnaoui was a design engineer who had worked at Micropole SA for a year. The letter of dismissal given to her stated that a client had complained about her headscarf and asked the company to ensure she wouldn’t wear it again (Amnesty International, 2016). The company’s argument was that a policy of “neutrality” needed to be respected and maintained when it came to clients (Straits Times, 2017).
In both cases, the preliminary rulings concerned the interpretation of Article 4 (1) of the Equality Framework Directive 2000, a European Union Directive made for battling discrimination on the grounds of age, disability, sexual orientation, and religion or belief in the workplace.
On reading the judgements that were decreed by the Grand Chamber, the essence of both cases is illustrated as understanding what constitutes “discrimination”, and what constitutes “direct” and “indirect” discrimination. However, the judgments do not incorporate the historical and sociopolitical conditions that have led to the existence of such cases and consequent rulings.
The French Revolution of 1789 could be said to have had four integral pillars — liberté, égalité, fraternité, and laïcité. This fourth pillar of “neutrality” has been implemented through the absence of religion in government affairs. This absence has recently been expanding to include public schools and the workplace in a manner that disproportionately affects Muslim women.
A most prominent precursor to the above two cases is the 2004 ban by the French government on “religious dresses” in public schools under the principle of laïcité. Yet, the headscarf was only worn by fewer than 1500 Muslim students at the time of the 2004 ban (Habti, 2004).
The deliberations in the European Courts show a pattern emerging across jurisdictions that is in accordance with the ideas of secularity politicians claim are embodied by laïcité. To delve into the history of laïcité, in actuality it operates as a dependent variable or condition that is dependent upon another. Popular belief, according to Charles Taylor, is “that secularism has to do with the relation of the state and religion” and is independent.
Au contraire, an independent variable related to “the (correct) response of the democratic state to diversity” has influenced and shaped laïcité since it’s conception (Taylor, 2010). The societal, and therefore state’s, response to Muslim immigration and the increased presence of Islam has influenced, rather than been influenced by, laïcité, and consequently led to the discrimination at hand.
France’s animosity towards religion as a whole can be traced to its democratic basis lying in the dismantling of an ancien régime made up of a strong Catholic Church backed by the Divine Right of Kings and a class of elitists that existed through the maintenance of a highly stratified society. Laïcité backed the voice of “reason”, which appeared to be in stark opposition to religion by many. It served as a placeholder religion to replace and reverse the ways of the ancien régime.
This history is in contrast to the United States, where no such former regime existed. As a result, in France, we see active secularism that attempts to make religion absent from the government, and in America, we see passive secularism that allows Protestant Christianity to underlie the workings of the state. It is passive because certain “truths” are treated as obvious and are incorporated into American life and law accordingly.
Yet, similar to France, America’s form of secularism appears to be a placeholder for Protestantism, the constitution its Bible, keeping in place a Protestant hegemony.
France and the United States have both dealt with religious diversity as a threat to the status quo. Enlightenment thinkers like Locke were influential Christians who raised many suspicions about the religions of “the other”. As Charles Taylor discusses, American Catholicism was originally targeted in the 19th century “as inadmissible to democratic mores, in ways very analogous to the suspicion that nag people over Islam today” (2010).
With passive secularism that protects Protestant ideals, since the conception of the country every other religion became simply that — “the other”. While looking at how Islam has been comparatively dealt with in the United States, specifically a headscarf ban would never be imposed under the pretexts of secularism, rather, and if at all, directly under that of being a “security measure”.
The First Amendment of the US Constitution reads that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” to ensure that no one religion is established and all religions in the pluralistic society are free to express themselves (Casanova, 2009).
Keeping in mind the free exercise clause, the US could never prohibit the free exercise of a religion unless the state found other grounds that provided substantial cause for why a practice, such as wearing a headscarf, should be banned. The scope of the French protection of freedom of religion is inherently dissimilar to this, merely recognising religious organisations and not addressing doctrinal practice itself.
Unfortunately, despite France being seen as the fore bringer of the enlightenment, the country’s response to diversity is not a new phenomenon within it. To explore this, the history of Jews in France over the past millennia is encapsulated by their persecution for being “the other”. As early as the second century, principal fathers of the church were writing of Jews as “rejected” and “despised” peoples who were “doomed to a life of marginality and misery” (Pawlikowski, 2007).
Although Jewish emancipation is claimed to have happened during the French Revolution, they still face religious persecution. Locke asserted that citizens of a state cannot give themselves to the protection and service of a different monarch, be it Pope or Rabbi, since it meant the establishment of foreign jurisdiction within the state (1689).
In 1790, the French National Assembly took action to ensure that priests and clergies served only one crown (Kuru, 2009). This frames the issue as one of national identity. Conflicting identities were being created with the narrative that Jews could not be French since they maintained a separate Jewish identity that served another monarch.
As a result of such framing, aggravated by xenophobia, Jews were discriminated against explicitly. Prominent examples of this include the outright denial of basic human rights, being required to attend regular Christian sermons for conversion, and being ostracised through laws that enforced their segregation across the papal states by designating them to live in “ghettoes”.
So, as Hersch puts it, “[a]lthough the French Revolution and the emancipation of Jews are united… the movement that led up to complete political emancipation of the Jews commenced quite independently…” (1907).
How Jews and Catholics were treated contrasts with the disguised and implicit style of discrimination faced by adherents of Islam today. French politicians on the right have created the narrative that their resistance towards Islam is somehow in accordance with laïcité, and that they are upholding this principle “as a crucial feature of (French) identity”, making national identity the focus again.
For groups like the Republican Party, a singular principle becomes a sacred pillar which can be used to push other agendas. This is accredited to the fetishisation “of the favoured institutional arrangements”, or fetishizing laïcité (Taylor, 2010).
In the United States, similarly, the arrangement of “separation of church and state” is fetishized. As Taylor contends, the illusion of the existence of such singular principles is depicted instead of the underlying prioritisation of the different goals. He aptly asserts that a plurality, rather than singularity, of principles arises when viewing the dilemmas encountered in the realm of secularism (Taylor, 2010).
A result of Europe’s singularity is that such cases brought forward end with rulings that go out of their way to “protect laïcité” by restricting the growing but minimal presence of Islam. These rulings have elicited celebratory responses from right-wing parties throughout Europe. To Taylor, this is unfortunate since it displays a truth: “that contemporary democracies as they progressively diversify will have to undergo redefinitions of their historical identities, which may be far-reaching and painful” (2010). This redefining of historical identities is inevitably resisted.
Despite French history showing only a marginal presence of Islam, it has become so contentious. Even now, as the Pew Research Center reports, Muslims are only 5% of Europe’s population with the majority of them making up 8.8% of the French population (2017).
On hearing the testimonies of Muslim women in similar cases across Europe, the headscarf is clearly held as essential to them for practicing Islam and to live in accordance with the tenets of their faith. Yet courts, like in Ms. Achbita’s case, rule directly contradictory to this, saying “the blanket ban… in the workplace did not give rise to direct discrimination, no indirect discrimination or infringement of individual freedom or of freedom of religion was evident” (Grand Chamber, 2017).
In European law, “the principle of equal treatment” means direct and indirect discrimination are illegal with the exception of the latter justified by a “legitimate aim” and “appropriate” and “necessary” means. When direct discrimination constitutes “one person [being] treated less favourably than another is, has been or would be treated in a comparable situation”, it begs the question of whether a Caucasian woman wearing a headscarf for “secular” reasons would be fired over her persistence in wearing it (Grand Chamber, 2017).
I argue such a woman would not be reprimanded at all, because the headscarf would be seen as meaningless, insinuating direct discrimination against Ms. Achbita and Ms. Bougnaoui has taken place. Lorenzo Zucca explores ideas surrounding such symbolism, including trying to discern whether a symbol can be seen as powerful enough to pressure or indoctrinate young minds.
In Italy, while there are several local bans on face-covering veils, the hanging of crucifixes in schools has been protected by the Grand Chamber because “there is no evidence before the court that the display of religious symbol on classroom walls may have an influence on pupils” (Zucca, 2013).
I ask, does this not contradict the very purpose of a symbol being to represent a message or idea? If we operate under the same pretext as the Grand Chamber, it is even less likely a religious symbol would have an influence on adults. Therefore, it seems there is no “legitimate aim” justifying Ms. Bougnaoui being told not to wear her headscarf, or even for her client to object.
In conclusion, the allowance of veil bans in the workplace is contradictory and hypocritical in light of Grand Chamber rulings concerning Christianity across Europe. The issue at hand does not seem to be concerned with laïcité or definitional preoccupations. Cases like Ms. Achbita’s simply arose in response to the visibility of headscarves, be that minimal, and the fear of “the other” it invoked from European society.
There is a clear line of discrimination between employees who manifest their religion through the wearing of the headscarf, and employees who don’t, with the latter merely being more familiar to the majority. Yet, right-wing parties have framed the issue as one of preserving a “national identity” and are winning elections through securing “anti-immigration” vote banks.
This unwillingness to accommodate diversity in a state that is supposedly democratic is no novel phenomenon and raises important questions for the future of marginalised communities and democratic countries.
Is it possible that these cases have more to do with symbolism than secularism, and the fear invoked by said symbol? Is fear misattributing the symbol to be a threat to the status quo? What is the “correct” response of the democratic state to accommodating difference? How can this veil of ignorance be lifted?
References
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Casanova, J. (2009). The secular and secularisms(He Religious-Secular Divide: The U.S. Case ed., Vol. Vol. 76, №4, Social Research).
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H. (2017, March 15). EU court rules workplace headscarf ban legal. Retrieved December 02, 2017, from http://www.straitstimes.com/world/europe/top-eu-court-says-companies-can-ban-wearing-of-religious-symbols
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Hersch, I. H. (1907). The French Revolution and the Emancipation of the Jews. The Jewish Quarterly Review,19(3). doi:10.2307/1450957
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Taylor, C. (2010). The Meaning of Secularism. Retrieved December 01, 2017, from http://iasc-culture.org/THR/archives/Fall2010/Taylor_lo.pdf
