Lawyer: It is difficult to prove the headscarf in the workplace

That is the view of Elsa van de Loo, a lawyer who is involved in equal treatment and human rights. The European Court was asked to rule on this case after a Belgian Muslim woman was not allowed to do an internship at a housing company. The woman had indicated in a job interview that she wanted to continue wearing the hijab.

Later, the woman asked the company if she could do an internship if she replaced her headscarf with another head covering. The foundation also rejected this request, stating that it does not allow any kind of head covering. Then the woman reported the discrimination. Then the National Court asked the European Court for an interpretation of European law.

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Van de Loo says the conditions for allowing employers to implement such a ban are difficult to meet. According to her, the European Court says it supports diversity in this ruling. This statement makes it difficult for employers to ban headscarves. “Because this is not permitted without the employer being able to demonstrate that it is necessary for the organization.”

The European Court’s decision came after Van de Loo with particular interest. “You don’t actually see much new compared to last year’s court ruling. At the time, the court had already given additional conditions that had to be met before a ban on wearing religious expressions could be seen as legitimate. In this statement it is already underlined.”

According to Van de Loo, an important fact in last week’s court ruling is that an employer must be able to demonstrate that the use of such a ban is necessary. Otherwise, the employer may not ban all kinds of religious expressions.

Proving this necessity is not easy, according to Van de Loo. “In the ruling in the case last year, the court said that as a company, you must be able to prove that, for example, you suffer a loss or that an employee is at risk if someone wears a head covering or a headscarf. But how do you do that?” Then the object and necessity of means must be legal. Suppose I work with hot ovens and wear a headscarf. It can be dangerous. But how justified is it not to allow a veil? Or is it sufficient to tie it and put it in my jacket?”

Diversity and tolerance

Van de Loo wrote on her social media about her view on the court’s ruling. I thought it was important to talk about this as a lawyer because she felt that due to the complexity of the case, the story was not being told quite correctly by many media outlets.

In the court’s ruling, counsel reads that the interpretation of the law presented is specifically intended to encourage greater diversity and tolerance. In the full judgment, the court refers to this literally. So I thought it was important to draw attention to this as well. Inadequate coverage may make employers think they are always right when they fire or not hire people because of their headscarf or yarmulke. The long-term agent can eventually be acquitted, but it is better to prevent it than to treat it.”

What Van de Loo has noticed about the reports published by several media outlets on this case is that, according to her, it will make it appear as if the case has already been settled. According to the lawyer, the reports published by many media outlets give the impression that the European Court has already decided that there is no discrimination here, while the court does not rule on individual cases. The National Court has not yet done so in this case.

In this case, the national court asked the court to explain how to interpret and apply European law in this case. The European Court has now ruled on this matter. The case now returns to the court in Belgium, which will ultimately decide whether there is discrimination here. The lady in this case wanted to work for a housing company, so I am curious how the employer explains the necessity of this measure”, van de Loo concludes.