The CJEU's judge Juliane Kokott has some reservations about that Islamic (!) headscarf.

Juliane Kokott making a non-symbolic
statement
© Portrait-Fotografin Gudrun-Holde Ortner

I usually nod off when I hear about this complete sartorial non-issue. Far from alluding to Godwin's Law, I do believe though people have a need for punching bags just to conceal their inner beliefs in order to discriminate raise concerns in a politically correct way.

German lawyer Juliane Kokott felt professionally obliged to tackle the pressing issue of the headscarf. Let me rephrase, not the headscarf per se but the Islamic headscarf, mind you.

 It evades my knowledge which countries are on Mrs Kokott's fave list for her vacations, yet I feel some are missing and these could potentially broaden her horizon. Perhaps she prefers pools in five-star resorts. Anyway.

She deliberates about the Samira Achbita case. I do not! There is a reason for it, because this case is about discrimination of a religion on the pretext not of a headscarf, but on one as a symbol of Islam. This is nucking futs.

In OPINION OF ADVOCATE GENERAL KOKOTT, delivered on 31 May 2016 (1) in the Case C‑157/15

Samira Achbita

and

Centrum voor gelijkheid van kansen en voor racismebestrijding

v

G4S Secure Solutions NV

Mrs Kokott starts off ominously:

2.        There is no need to highlight here the social sensitivity inherent in this issue, particularly in the current political and social context in which Europe is confronted with an arguably unprecedented influx of third-country migrants and the question of how best to integrate persons from a migrant background is the subject of intense debate in all quarters.

To which I would like to point out that India for example has more than 1 billion

Adi people

people, the constitution lists 22 different languages, the dresses are distinctly different all over the country and there are more than 66 different scripts. The country has a functioning democracy. I do not see how a piece of garment could become an issue like it has in Europe.

3.        Ultimately, the legal issues surrounding the Islamic headscarf are symbolic of the more fundamental question of how much difference and diversity an open and pluralistic European society must tolerate within its borders and, conversely, how much assimilation it is permitted to require from certain minorities.

If "an open and pluralistic European society" would be the honest concern of Mrs Kokott, then she could easily call it a day, consult the US's First Amendment and hit the beach.

Feared French terrorist YSL

No, she won't because the headscarf is "symbolic". A pretty succesful purveyor of art dressed in fibre had made a stunning fashion statement in 1976; decades ago when Juliane was still playing with dolls.

17.      G4S employees are not permitted to wear any religious, political or philosophical symbols while on duty. Initially, that prohibition applied only as an unwritten company rule. With the approval the G4S works council, the following written formulation was incorporated into the G4S employee code of conduct with effect from 13 June 2006:

‘employees are prohibited, in the workplace, from wearing any visible signs of their political, philosophical or religious beliefs and/or from giving expression to any ritual arising from them.’

It is amazing what the headscarf has achieved. Neither the jeans, the slouchy T-shirt, Croqs, Lacoste, RR, caviar, nor Passoni come even close as a symbol ... of whatever. One could easily see the jeans as a symbol of rebellious people and Christians, Croqs for people with absolutely no taste and deflation terrorists, caviar eaters as the symbol of environmental badasses. RR of, oh fuck, get me outa here.

49.      It must be emphasized first of all that the ban at issue applies to all visible religious symbols without distinction. There is therefore no discrimination between religions. In particular, all of the information available to the Court indicates that the measure in question is not one directed specifically against employees of Muslim faith, let alone specifically against female employees of that religion. After all, a company rule such as that operated by G4S could just as easily affect a male employee of Jewish faith who comes to work wearing a kippah, or a Sikh who wishes to perform his duties in a Dastar (turban), or male or female employees of a Christian faith who wish to wear a clearly visible crucifix or a T-shirt bearing the slogan ‘Jesus is great’ to work.

Oh really, to all religions? Pardon me, when I raise my doubts. It says "could", but has

She did not get sacked for
wearing a headscarf

a Dastar or a clearly visible crucifix really been complained about by the company? That question would miss the point Mrs Kokott is trying to convey.

50.      It is true that the Directive, the scope of which is to be interpreted broadly, (27) prohibits not only discrimination based on a religion but any form of discrimination based on religion per se (Article 2(1) in conjunction with Article 1 of Directive 2000/78 and Article 21 of the Charter of Fundamental Rights). Even from this point of view, however, a case such as that at issue does not support the assumption of direct religious discrimination.

Mrs Kokott keeps on blathering for a while until you get here.

69.      That is the case here inasmuch as G4S does not prohibit its employees from belonging to a particular religion or from practising that religion, but requires only that they refrain from wearing certain items of clothing, such as the headscarf, which may be associated with a religion. The issue, therefore, is whether an employer is permitted to stipulate as an occupational requirement that a female employee must comply with a number of specifications relating to certain characteristics of her external appearance, and in particular certain aspects of her clothing, if these may have a religious significance.

Mrs Kokott seems to forget when she writes "the headscarf, which may be associated with a religion", that she has already established - on grounds she did not elaborate -

Haryana women - Hindu or Islamic scarves?

in 3. that it is an "Islamic headscarf".

Mrs. Kokott's world seems to be smallish and I wonder what these women from Haryana would say?

Mrs Kokott would of course blow her cover would she clearly state what is dripping through her unrelenting legalese: that Islam is considered a dangerous religion.

75.      While the work of a receptionist can as such be performed just as well with a headscarf as without one, one of the conditions of carrying out that work may nonetheless be compliance with the dress code laid down by the employer (e.g. the obligation to wear work attire or a uniform and the ban, if any, on wearing visible religious, political or philosophical symbols), in which case the employee carries out her work in a context in which she must refrain from wearing her headscarf.

76.      Some undertakings may consciously set themselves the goal of recruiting a colourful and diversified workforce and turn the very diversity that it showcases into its brand image. However, an undertaking — such as G4S in this case — may just as legitimately decide on a policy of strict religious and ideological neutrality and, in order to achieve that image, demand of its employees, as an occupational requirement, that they present themselves in a correspondingly neutral way in the workplace.

It goes on and on in this vein till she finally gets to her

VI –  Conclusion

141. In the light of the foregoing submissions, I propose that the Court’s answer to the request for a preliminary ruling from the Belgian Hof van Cassatie (Court of Cassation) should be as follows:

1)      The fact that a female employee of Muslim faith is prohibited from wearing an Islamic headscarf at work does not constitute direct discrimination based on religion within the meaning of Article 2(2)(a) of Directive 2000/78/EC if that ban is founded on a general company rule prohibiting visible political, philosophical and religious symbols in the workplace and not on stereotypes or prejudice against one or more particular religions or against religious beliefs in general. That ban may, however, constitute indirect discrimination based on religion under Article 2(2)(b) of that directive.

2)      Such discrimination may be justified in order to enforce a policy of religious and ideological neutrality pursued by the employer in the company concerned, in so far as the principle of proportionality is observed in that regard.

In that connection, the following factors in particular must be taken into account:

–        the size and conspicuousness of the religious symbol,

–        the nature of the employee’s activity,

–        the context in which she has to perform that activity, and

–        the national identity of the Member State concerned.

In case you have any further questions about the symbols that keep judge Juliane Kokott engaged, here are two from her list.

On a more positive note, this should qualify the Missus for a ministerial position in the German government or the German Spanish Inquisition at Karlsruhe. She would look ravishing in red.