Wearing a hijab in the workplace, what is the legal situation?

What about the legal framework around wearing a hijab in the workplace? With that question, we went to the organization BOEH (Baas Over Eigen Hoofd), which has been actively fighting the ban on religious signs in education and the workplace since 2007. In a conversation with Arthemis Snijders, activist with BOEH, we are made wiser about what is actually allowed and not allowed and how employers are dealing with this today.

“The hijab is not so much banned by a law,” Snijders immediately clarified. ‘Bans are formulated as a ban on all religious and philosophical signs, including a turban for Sikhs, cross for Christians and a kippah for Jews, for example. However, in practice, women who wear hijabs are particularly affected.’

‘The so-called neutrality principle; you can’t tell from someone what their religion is, which is why hijabs are prohibited in many government positions with customer contact.’

The underlying reason for such a ban? It varies, according to Snijders, depending on the nature of the employer. ‘Governments assume the separation of church and state and the so-called neutrality principle; you can’t tell from someone what their religion is, which is why a hijab is prohibited in many government positions with customer contact.’

‘The first government to institute a hijab ban for its personnel coming into contact with the public was the city of Antwerp in 2007. Several cities have followed suit. Also Ghent, but later that ban was repealed. The Flemish government leaves the decision on a ban up to department heads. The Flemish government statement envisions a blanket ban for all Flemish public services, but it does not look like this will be feasible. A blanket ban would violate religious freedom. But of course the last word has not been said on this.

‘Fear of the reaction of customers or other stakeholders is already cited at such times.’

From Inclusified (the consulting company founded by Hanan Challouki, also the initiator behind Hijabis at Work), we find that for companies there can be several reasons for not allowing religious signs in the workplace. ‘Fear of the reaction of customers or other stakeholders is sometimes cited at such times. Or “we don’t want to offend anyone.” But those reasons are based on prejudice against women wearing hijab. Safety is also already sometimes cited at companies in the chemical industry, for example, but can sometimes be an excuse to avoid saying they simply don’t want it,” Hanan Challouki said.

In the private sector, a ban must be included in the labor regulations, Snijders points out. ‘A company must have in its regulations that this prohibition is there. It can’t say afterwards or on a job application that it’s prohibited if it’s not in the regulations. We did see that after the ban in the governments, more companies were inspired to ban it themselves.’

‘The Achbita case is one of the best known, where a Muslim woman wearing a headscarf who worked for G4S was fired and went to court because of discrimination.

This also led to lawsuits at some companies, such as G4S and STIB. Snijders explains the consequences of that. ‘The Achbita case is one of the best known, where a Muslim woman wearing a headscarf who worked for G4S was fired and went to court because of discrimination. Unfortunately, all courts; the labor court in Antwerp (2009), the EU Court of Justice (2017) and the labor court of Ghent (2020) ruled that there was no discrimination. The demand for neutrality was legitimized, but dismissal was too far-reaching a measure.’

‘Unlike the previous case, we see that in 2021, a positive ruling was given by the Brussels labor court, on a complaint against the transport company STIB. The company had twice refused an employee wearing a hijab for an inside position. The judge ruled that this form of exclusive neutrality did not ensure that travelers were treated better. According to the labor court, this amounted to direct discrimination based on religious beliefs and indirect discrimination based on gender.

‘Then is there such a big difference between the Belgian and Dutch contexts?’

At the launch of Hijabis at Work, there were also a lot of reactions from the Netherlands from people who did not understand why the hijab would be a problem in the workplace. So is there such a big difference between the Belgian and Dutch contexts? “Overall, wearing a headscarf in the workplace was less problematic in the Netherlands,” Snijders explained. Wearing a headscarf was allowed in various jobs, except in the police. Recently there was also a discussion about banning in BOAs (Extraordinary Investigating Officers: an extension of the police with fewer powers). However, this is decided at the municipal level. In these positions, the neutrality of the government was used as an explanation for the headscarf ban… Nevertheless, in recent years there has been more discrimination against Muslim women in the job market when seeking internships and during job applications.

What if we look not beside our country, but above it? So what about at the European level? Snijders refers to a 2017 European court ruling. ‘That European court ruling stated that employers had the right to ban visible religious displays in the workplace. In 2021, however, the court came up with more requirements. ‘A company may adopt a neutrality policy, provided it is seriously underpinned by a legitimate purpose. Neutrality cannot be abused to restrict religious freedom. This means there is a burden of proof on the employer to show that it would actually be harmful to a company to hire an employee wearing a headscarf.

So that freedom of religion, we have a framework around that in Belgium and in Europe that should also protect women who wear hijab. ‘The European Convention on Human Rights says that you should have the freedom to express your beliefs or religion. So this is a human right. The STIB case shows that a headscarf ban is not only discrimination based on religion, but also gender,” Snijders explained.

‘Previously, these women could go to UNIA, but now there is the Flemish Human Rights Institute (VMRI). Here you can file a complaint and they will then try to mediate, if to no avail this can go to the dispute room, which will decide if there is discrimination.

So what, according to Snijders, can women wearing hijab do themselves to take advantage of these rights? What if discrimination does occur? ‘Previously, these women could go to UNIA, but now there is the Flemish Human Rights Institute (VMRI). Here you can lodge a complaint and they will try to mediate, and if this does not help, it can go to the Dispute Resolution Chamber, which decides whether there is discrimination. This is not a binding decision and you can still take legal action if you do not agree with the arbitration board. You can take legal action at the Belgian level, but also ultimately at the European level. Unlike UNIA, the VMRI may not actually support those legal actions.’

“A hijab ban is always discriminatory.

Beyond the legal framework, of course, it is also about providing an inclusive work environment for women who simply want to do their jobs and be able to be themselves in the process. Snijders points out that a headscarf ban is always discriminatory and therefore has no place within a company that wants to present itself as inclusive.

‘A hijab ban (ban on religious signs) is always discriminatory. A company that would allow a headscarf in the back office says to its employees; we would rather not see you. That is not full acceptance nor does it make for a pleasant and inclusive work environment.

‘There are also organizations and companies that do allow hijab, but there is still a lot of racism and Islamophobia in the workplace that women wearing headscarves face. Employers should not only work to allow the headscarf, but also actively ensure an inclusive work environment that is strict on discrimination.