Case Watch: German Court Sides with Muslim Women Teachers Over Discriminatory Headscarf Ban
By Maryam H'madoun
Across the European Union, it has been a long and uphill battle for Muslim women who face barriers to certain jobs because of headscarf bans in the workplace. Now in Germany, a Federal Labor Court has ruled that a blanket headscarf ban for teachers in the city of Berlin is unconstitutional and discriminatory based on religion.
The judgement is expected to end a decades old court battle over headscarf bans for teachers in Germany. The ruling also sets a higher standard against discrimination based on religion across Europe, where protections for religious dress have eroded in recent years.
Since 2005, the city of Berlin’s Neutrality Act has prohibited civil servants and public employees, such as teachers, from wearing religious dress and symbols. The Act remained, despite a Federal Constitutional Court ruling in 2015 that a blanket ban for teachers in public schools violates the right to religious freedom. The 2015 ruling found that it was not a sufficient argument that, without concrete evidence, wearing a headscarf harms school peace or state neutrality. Yet, Muslim women persisted and continued to challenge the ban. Rather than change the law, Berlin State continued to pay applicants instead.
The latest case was brought by a Muslim woman who applied for a teaching position in 2017 at a state school in Berlin. The school’s administration refused her the position simply because she wore a headscarf. After a regional labor court awarded the applicant 5159 euro in compensation in November 2018, Berlin State decided to appeal the decision. This forced the Federal Labor Court to not only rule on the specific case, but also on the principle of the matter. The High Court sided with the regional labor court, both referencing the 2015 Federal Constitutional Court ruling that a school must bring concrete evidence of harm and that a blanket ban is unconstitutional.
Now, the Federal Labor Court's landmark decision has increased political pressure on leaders to amend Berlin’s Neutrality Act. Changing the law will not only allow Muslim women to work as teachers if they choose to do so, it will also relieve them from the burden of having to go to court again to assert their basic rights.
On Twitter, Dirk Behrendt (Green Party) called for the law to be changed “in this legislative period”. He stated that the Federal Labor Court’s decision was to be expected—referring to the 2015 Constitutional Court precedent—and that "in a multi-religious society, it must be about what one has in their head and not on their head."
The applicant and many Muslim women across Germany celebrated the ruling. The Bündnis #GegenBerufsverbot (Coalition Against Professional Ban) has campaigned against headscarf bans in employment in Germany and the Berlin Neutrality Act. They have seen many Muslim women eager to take up teaching jobs that are often very hard to fill, being refused simply because of their headscarf.
A spokesperson for the Coalition, Miriam Aced, expects Berlin’s governing coalition to finally uphold the rule of law and abide by the Federal Labor Court’s decision, and the Constitutional Court decision before it. “This is a huge win for us, but we expect action from the state. After the 2015 Federal Constitutional Court ruling, the state disseminated a letter to all schools, school principals, and those working in education outlining that the headscarf ban in schools still stands.”
Now, she believes that the state needs to inform employers about the recent court decision. Aced went on to say, “We now expect the State to launch a large-scale information campaign as well with a letter sent to all relevant stakeholders explaining that their hiring practices for public schools have changed and that those wearing religious dress are welcome to apply. Berliners need to know what their rights are.”
This week’s decision sets a different tone in Europe too, upholding high standards against ongoing discrimination in neighboring countries. In June, a Belgium Constitutional Court ruling justified a headscarf ban in higher education, albeit for students. Some of whom took to social media forcing colleges and universities to take a stand in support of religious diversity in the student body despite the Court’s ruling. The decision also led to a mass protest by Muslim women and supporters in Brussels.
France has significantly influenced Belgium’s institutional and political culture in this matter. Sparking national debates about the headscarf against the backdrop of increasing Islamophobia as early as 2002, France implemented a national headscarf ban in public schools in 2004, which only opened the door to never ending debates about headscarves and Muslim women’s dress. France’s most recent debate involves whether or not the few Muslim women who decide to enter the legal profession should be allowed to wear a headscarf in combination with their robe.
It was also cases from France and Belgium, relating to headscarf bans in private employment, that led to the very first ruling of the European Court of Justice (ECJ) on discrimination based on religion. In 2017, the ECJ ruled that private employers are allowed to ban religious dress in pursuance of a policy of neutrality.
Unsurprisingly, the ECJ ruling experienced heavy criticism and is being challenged by two pending cases from Germany. With the UK leaving the EU, it is up to countries like Germany and the Netherlands—who are known for their open cultures toward religious diversity and strong protections against discrimination—to maintain a high bar.
In a continent that has been swaying to the right, and arguably far-right with anti-Muslim rhetoric and legislative actions, the German High Court’s decision is a bold and courageous move that history will look kindly upon.