Europe will allow businesses to ban headscarves. Here's why it likely won't happen here.

European workplaces can ban Muslim employees from wearing headscarves and suspend them for not complying, the European Union’s highest court ruled on July 15. 

The ruling from the Court of Justice declared that two German Muslim women, a special needs caregiver and a cashier, were justifiably suspended from their jobs for refusing to adhere to their workplaces’ neutral dress policies.

“A prohibition on wearing any visible form of expression of political, philosophical or religious beliefs in the workplace may be justified by the employer’s need to present a neutral image towards customers or to prevent social disputes,” the ruling read.

Public bans have swept Europe in recent years, with countries including Germany, Belgium, Switzerland, and Denmark passing laws that prohibit religious garb. That includes hijabs, an Islamic headscarf; burqas, a long garment that covers the entire face and body; and niqabs, a veil that covers the entire face except for the wearer’s eyes.

But experts say these bans aren’t likely to be implemented domestically. Were a similar law to be proposed in the United States, it would be struck down swiftly, they say.

“It’s extremely unlikely that something like that would ever be passed in the United States,” Asma Uddin, a religious liberty lawyer who worked on the landmark workplace discrimination Supreme Court case, EEOC v. Abercrombie and Fitch Stores, Inc., told The American Independent Foundation. “The United States has the widest protections for religious freedom and religious expression anywhere in the world, and we have very specific accommodations for religious believers in the workplace.”

That doesn’t mean bans on religious garb in public haven’t been attempted before.

Georgia State Rep. Jason Spencer (R-GA) filed a bill in 2016 that would have banned Muslim women from wearing veils in public. The legislation specifically prohibited burqas and niqabs while driving or in drivers license photos.

Spencer ultimately rescinded the bill following intense pushback.

Still, U.S. protections for religious expression are among some of the strongest in the world.

In 2015, the Supreme Court ruled 8-1 in favor of a Muslim teenager who applied for a job with Abercrombie & Fitch but was turned down because the company said her headscarf, known as a hijab, violated the company’s “look policy.”

Justices cited Title VII of the 1964 Civil Rights Act, which mandates that employers allow “all aspects of religious observance and practice,” unless the employer can demonstrate “undue hardship” on their business.

“If the only reasons are, ‘well, this is just the way we do things’ or ‘this is the way our customers prefer it,’ on some very general level… then in that case, that’s something the employer cannot impose,” Eugene Volokh, who teaches First Amendment law at UCLA, said in a phone interview.

Of course, there have been exceptions.

For years, multiple U.S. states prohibited religious garb for public school teachers starting in the late 19th century. Oregon only repealed its religious dress ban in 2010 and Nebraska did the same in 2017. Pennsylvania just began a legislative effort to repeal the law in April.

Alima Reardon, a Muslim substitute teacher in Pennsylvania who was fired for wearing a hijab in 1984, filed a complaint with the federal Equal Employment Opportunity Commission, challenging the state’s anti-religious garb law, but the Third Circuit Court of Appeals ruled against her in 1990. 

The court found Reardon’s situation didn’t violate Title VII because accommodating her would have placed an “undue hardship” on the school board. The board might have faced criminal liability by violating the religious garb statute and it had a compelling interest to maintain religious neutrality in the schools, the court argued in its ruling.

That 1990 Third Circuit ruling has since been rejected by the court itself and is considered to be obsolete, Ismail Royer, director of the Religious Freedom Institute’s Islam and Religious Freedom Action Team, wrote in an email.

“Even though one finds traces within American jurisprudence of the secular animus towards religion, these views are outliers and disfavored in the law, and exceptions that prove the rule,” Royer wrote.

Today, the only likely way a workplace could institute a ban similar to Europe’s would be if a lawsuit was brought against a company with less than 15 employees, to which Title VII doesn’t apply, he added.

And there are still other constitutional protections that further prohibit religious discrimination against federal and state employees.

Both the 14th Amendment’s Equal Protection Clause and the First Amendment’s Free Exercise Clause prevent the federal and state government from creating laws that prevent a woman from practicing hijab.

Then there’s the Religious Freedom Restoration Act, a federal law with 21 similar versions on the state level, which restricts governments from placing a substantial burden on someone’s religious exercise unless it is absolutely necessary.

RFRA and its state corollaries have been controversial though — since the Supreme Court ruled in favor of Hobby Lobby in 2014, allowing the organization to deny contraception to employees under RFRA, advocates have raised the alarm about companies using RFRA laws to deny services or discriminate against LGBTQ customers.

While the European Union does promise citizens freedom of religion in its Charter of Fundamental Rights, Europe has a long history of trying to keep religion from the public sphere, unlike the United States.

The debate around religious liberty is particularly pervasive in France, where the idea of laïcité or secularism is enshrined in the French constitution. The country banned niqabs and burqas in public in 2010, citing a threat to public safety, and did the same with headscarves in public schools in 2004.

Critics say rulings like the workplace hijab ban are not just about a concern for secularism in the public arena, but often stem from Islamophobia.

“[The European Court of Justice ruling is] a reminder to us that unfair and unjust restrictions on freedom of religion don’t only take place in countries with repressive governments,” Katrina Lantos Swett, former chair of the U.S. Commission on International Religious Freedom and president of the Lantos Foundation for Human Rights and Justice, told the American Independent Foundation.

“We do see, primarily in Europe, unnecessary and unfair and unjust restrictions on the right to freely practice their faith and that very often these are targeted towards the Muslim community,” she added.

Published with permission of The American Independent Foundation.