Religious symbols, Germany and courts

It is a crux with those Germans and religious symbols. Should they be worn discreet, should the be worn open and if so, what size? A case about two women wearing an Islamic headscarf (again the Islamic headscarf and Germany) was referred to the Court of Justice of the European Union (CJEU) which in parts bent over backwards and tilted this way and that way. Visibly uncomfortable and it is embarrassing to read their reasoning. Just read the ‘Legal Analysis’ of the court. The UK Human Rights blog has an article about it.

Court of Justice of the EU allows prohibition of religious symbols in the workplace

“The Court of Justice of the European Union (CJEU) sparked controversy with its recent judgment passed down in IX v Wabe eV and MH Müller Handels GmbH v MJ. This case required the CJEU to again consider the right to freedom of religion. It ruled that employers can ban workers from observing religious symbols, including headscarves, to maintain a neutral image in front of its customers.

Case Background

This ruling was brought by two Muslim women in Germany who were suspended from their jobs because of wearing a headscarf. IX and MJ, were employed in companies governed by German law as a special needs caregiver and a sales assistant respectively. They both wore the Islamic headscarf at their workplaces. The employers held the view that wearing a headscarf for religious purposes did not correspond to the policy of political, philosophical, and religious neutrality pursued with regard to parents, children, and third parties, and asked the women to remove their headscarf and suspended them from their duties on their refusal to do so. MJ’s employer, MH Müller Handels GmbH, particularly instructed her to “attend her workplace without conspicuous, large-sized signs of any political, philosophical or religious beliefs.”

IX and MJ brought actions before the Arbeitsgericht Hamburg (Hamburg Labour Court, Germany) and the Bundesarbeitsgericht (Federal Labour Court, Germany), respectively. The courts referred the questions to the CJEU concerning the interpretation of Directive 2000/78. This directive establishes a general framework for equal treatment in employment and occupation.”

Full post here.

As the article states, Article 9 of the European Convention on Human Rights (ECHR) protects the right to manifest one’s religion and beliefs. Article 9 is often relied upon in conjunction with Article 14 of the ECHR, which prohibits discrimination based on, among other things, religion and opinions.

So far so good. But, you know, some proportionality and neutrality should be observed. Right?

However, this must be ‘proportionately’ balanced since the state has a positive obligation under Article 9(2). 

We all know, size matters and that seems to be the/one problem.

Third, the Court considered whether all visible forms of expression of political, philosophical, or religious beliefs should be prohibited or only conspicuous, large-sized signs. It noted that the latter, a limited prohibition on large signs, will have a greater effect on people with beliefs which require the wearing of a large-sized sign, such as a headscarf. As a result, some workers could be potentially treated less favourably which would amount to direct discrimination. Therefore, the policy can only be effective when absolutely no visible manifestation of religion or belief is allowed.

This reasoning in another case stuck out:

The Court held that, while this aim was undoubtedly legitimate, the UK courts accorded it too much weight. Ms Eweida’s cross was discreet and could not have detracted from her professional appearance. 

Here is another article going into some details and the author sees some hope. Meanwhile back in 2018 there was an open call to wear the kippa. Here the midget, more from the midget, the whole of Berlin was apparently (or not) wearing it.