Is Neutrality Possible? A Critique of the CJEU on Headscarves in the Workplace from a Comparative Perspective

Abstract This Article discusses critically and from a comparative perspective the idea of neutrality mentioned in the two recent decisions of the Court of Justice of the European Union (CJEU) on headscarves in the workplace. The decisions indicate a trend common in many European states that shows little willingness to accommodate for the manifestation of religion in the public sphere. This Article discusses the criteria posed in the decisions on the permissibility of limiting the wearing of headscarves in the workplace and compares them to those used by courts and equality commissions in the United States. It makes a normative argument on what the CJEU should have said in its decisions in order to provide more concrete guidance to national courts. The concept of neutrality, as understood in certain CJEU and European Court of Human Rights cases actually discriminates against some religious groups. It is impossible to be neutral in these issues because neutrality is culturally defined and has a disparate impact in its application upon minority religious groups. This is due to the dominant understanding of neutrality towards religion or secularism in Europe. This understanding should change due to the incoming waves of immigrants that should be integrated. For a number of social and historical reasons there is in the United States greater tolerance for religious expression in the workplace and in the public sphere more generally. The U.S. approach accommodates a spectrum of religious interests and operates to integrate minority religious groups rather than to exclude them. Understanding the philosophical ideas which underlie the differences in the law can inspire a normative reflection on the proper criteria to balance the employee’s freedom of religion and the employers’ rights to define their business. The American approach on headscarves in the workplace is preferable to the European on a deontological and a consequentialist basis as it provides a better accommodation of the relevant interests. It is furthering inclusion in the labor market through respect of differences that allows human flourishing.