Last month’s decision by the European Union’s highest court ruled that companies in Europe can ordinarily bar women from wearing symbolically religious head scarves known as jihabs on the job. It was both troubling and perplexing.

According to the court’s opinion, a prohibition of 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 toward customers or to prevent social disputes…. However, that justification must correspond to a genuine need on the part of the employer.


Presumably this could apply to Jews wearing kippahs and beards as well as their need for special scheduling to accommodate Sabbath observance while other employees would be denied the opportunity to rearrange schedules for non-religious needs.

More fundamentally, the underlying logic seems to turn the very notion of anti-discrimination laws on its head. By definition, discrimination is visited upon those who are different or who act differently from the way the majority of people do. Laws exist to bar employers from acting on some of those differences. How then can employers be permitted to act negatively toward those differences in the name of neutrality? Neutrality means you have to treat everybody the same, differences and all.

Then there is the issue of what constitutes “need” to “prevent social disputes.” It seems illogical, but it seems the court has said that customer preference can trump laws against discrimination. An employer can accommodate a patron’s bias if the bias is expressed forcefully enough. This is reminiscent of the old argument made by some Southern merchants and restaurant owners that they would not serve African-Americans because their other customers objected to being in their company.

To be sure, the court left open the possibility that individual national courts in the 27 countries constituting the European Union could modify its holding. But that would be starting out with a handicap and hardly a promising prospect.


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