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Reading: The Headscarf Debate Returns to Luxembourg: A Second Chance for Religious Freedom?

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The Headscarf Debate Returns to Luxembourg: A Second Chance for Religious Freedom?

Author:

David Antonio Zuther

University of Edinburgh, GB
About David
David Zuther is a final-year law student at the University of Edinburgh with a particular interest in European and international human rights law, anti-discrimination and international criminal law.
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Abstract

The CJEU’s July 2021 judgment in WABE and Müller (Joined Cases C-804/18 and C-341/19) was anticipated by observers as a sequel to its highly controversial decisions in Achbita (C-157/15) and Bougnaoui (C-188/15), in which it decided that employers can ban employees from wearing Islamic headscarves and other religious symbols as part of a corporate neutrality policy without falling foul of EU anti-discrimination law. These earlier judgments were roundly criticized by commentators as weakening the protection from religious discrimination in the workplace. This contribution will engage with the Court’s recent judgments, summarizing first the decisions in Achbita and Bougnaoui and the criticism directed at them. It will then consider the framing of the preliminary references in WABE and Müller before turning to the Opinion of Advocate-General Rantos and the Court’s judgment. This contribution concludes that in its recent judgments, the Court addressed some of the problems with Achbita and Bougnaoui - in particular, the role of fundamental rights and the proportionality assessment as well as the right of Member-States to go beyond the protection standard set by Union law - while it did not budge on others, such as the definition of direct discrimination or the issue of prejudice and customer preferences, so that these decisions represent an important but limited step forward from the perspective of religious freedom and non-discrimination in the workplace.
How to Cite: Zuther, D.A., 2021. The Headscarf Debate Returns to Luxembourg: A Second Chance for Religious Freedom?. LSE Law Review, 7(1), pp.86–114.
Published on 14 Nov 2021.
Peer Reviewed

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