The Hijab Wearer as an Outlaw: a need for coherence in the two European Supranational Courts
21 mars 2017 • 12h
Salon François-Chevrette, Pavillon Maximilien-Caron, Faculté de droit, Université de Montréal
Le CRDP est heureux de vous convier à la conférence de la professeure Eugenia Relano Pastor (Complutense University, Madrid), le 21 mars à midi. Celle-ci portera sur « The Hijab Wearer as an Outlaw: a need for coherence in the two European Supranational Courts« .
Dr. Eugenia Relaño Pastor (PHD, University of Granada, 2001) works currently as Legal adviser in the Migration and Equal Treatment Area at the Spanish Ombudsman. She holds a Doctorate Degree in Law and Bachelor Degrees in Political Science and in Sociology. She is an Assistant Professor in Complutense University (Madrid) and Professor in the Master: Islam in European Societies, Faculty of Anthropology, Complutense University. She was a Fulbright Fellow in the Salzburg Seminar and visiting scholar in Institutions such as University of California at Berkeley, Institute of Comparative and European Law at the University of Oxford, Law School in Harvard University, University of Ottawa, etc.
She was member of the Advisory Panel of Experts on Freedom of Religion and Belief, ODIHR-OSCE (2005-2012). Currently she is the Spanish representative member of the Legal Working Group (LWG) of the European Group of National Human Rights Institutions (Council of Europe). Her research expertise comprises International Religious Freedom, Comparative Law, Equality, Religious Minorities, National Minorities, Xenophobia, Multiculturalism and Immigration.
Recent publications include ‘Religious Pluralism in Liberal Democracies’ in the edited volume Islam, Human Rights and Secular Values (Liberte, 2012); ‘Etudes de cas de discriminations religieuses en Espagne in the edited volume Les discriminations religieuses en Europe: droit et pratiques (L’Harmattan, 2012); ‘Participation of Muslim Minorities in the Spanish Mainstream society’ in the edited volume The Interrelation between the Right to Identity of Minorities and their Socio-economic participation (Martinus Nijhoff, 2013) and “The ‘Inclusive State Neutrality’ Normative Paradigm” in the edited volume Belief, Law and Politics. What Future for a Secular Europe? (Ashgate, 2014).
Muslim women who wear a headscarf have gradually become outlaws in Europe to the extent that the headscarf itself has been “de-normalized” and automatically problematized in different societal contexts. Claims of discrimination on the basis of wearing religious garments have been only partially successful in courts. As result, politicians and government actors aligned with judicial bodies on headscarf bans and have influenced on dominant public opinion who has found it legitimated to shun headscarf-wearing women. This consideration cannot be seen outside of the context of the rise of Islamophobia for last years in Western Europe.
In a climate of headscarf rejection, the first two religious discrimination cases concerning the dismissal of employees by private employers on account of their headscarves are pending before the Court of Justice of the European Union (CJEU) in Luxembourg. Both cases (Samira Achbita case and Asma Bougnaoui case) are the result of requests for preliminary rulings about the interpretation of the Anti-Discrimination Directive 2000/78/EC, which prohibits direct and indirect discrimination in the sphere of employment on grounds of religion or belief. The respective Advocate General (AG) for each case has recently delivered an opinion but the opinions are substantially contradictory. Therefore the Luxemburg Court is now confronted with two opposing approaches: one could lead to turn headscarf women into outlaws and the other may halt the persecution of Muslim women on account of their dress. Whatever direction the CJEU would take, it may take into consideration the European Court of Human Rights (ECtHR)´s jurisprudence on wearing religious garments. Although the ECtHR has dealt with a good number of cases that concern bans on religious dress, unfortunately, in the very large majority of cases, the Court has held that a ban was within the state’s margin of appreciation. In spite of this dominant trend, the Strasbourg Court found that there was a violation of applicant´s religious freedom in the only case on wearing a religious symbol at workplace that reached the ECtHR.
This presentation will analyze a possible convergence or divergence of the standards of both European Supranational Courts on the issue of religious symbol at workplace. By analyzing the legal reasoning of the Advocate General´s Opinion in Samira Achbita case and in Strasbourg´s case law, it will be noted how some important concepts such as “religion”, “identity”, “secularism”, “religious practice” and “secularity” have been distorted and misunderstood. Whatever direction the Luxembourg Court takes in the upcoming rulings, the decision could fundamentally shape the law barring discrimination on grounds of religion at workplace.
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Ce contenu a été mis à jour le 9 mars 2017 à 17 h 39 min.