With the increased reach of the populist movement and changing demographics, several European countries have been confronted with the need to define secularism and freedom of religion in a way where each of these concepts do not impinge on the rights of the other. This has dominated several discussions in politics, law, education, and social interactions throughout Europe.

One issue that stands at the forefront of these arguments is the wearing of the headscarf by Muslim women in Europe as a practice of their faith. The Court of Justice of the European Union (CJEU), the highest court in the European Union with regards to European Union law, provided judgments on two cases involving the headscarf in March 2017.

In Samira Achbita v. G4S Secure Solutions NV (G4S), the CJEU was asked to provide guidance on the interpretation of Council Directive 2000/78 as it related to the dismissal of Ms. Achbita, an employee of G4S, for wearing a headscarf as part of her religious beliefs. The Council Directive 2000/78 provides that the “principle of equal treatment” means that there will be no direct or indirect discrimination based on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation. Furthermore, the Council Directive highlights that indiscrimination occurs when apparently neutral provisions, criteria, or practice put persons of a particular religion, disability, age, or sexual orientation, at a particular disadvantage unless it is “objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.”

G4S stated that the company has a policy of not allowing employees to wear any political, philosophical, or religious signs as it may compromise the visibility of G4S’s position of neutrality. The Court ruled that there was no direct discrimination as the Directive did not single out a specific group of people or religion to target and was facially neutral. The Court did leave room to say that the rule may constitute indirect discrimination if persons of a particular religion or belief were put at a particular disadvantage, “unless justified by a legitimate aim” and the means of achieving that aim are appropriate and necessary.

Similarly, in Asma Bougnaoui v. Micropole, SA (Micropole), Ms. Bougnaoui was dismissed from her employment at Micropole because of her refusal to remove the headscarf that she wore for religious reasons, and about which some customers of the company had complained. However, here the CJEU ruled that the “the willingness of an employer to take account of the wishes of a customer no longer to have the services of that employer provided by a worker wearing an Islamic headscarf cannot be considered a genuine and determining occupational requirement within the meaning of that provision.”

It has been approximately four months since the decisions came out and many are still left confused. In some ways, the CJEU discussion parallels historical cases in the United States with regards to facially neutral laws and policies being reviewed for disparate impact against a specific group of people as violations of non-discrimination acts.

However, these CJEU decisions leave the door open for wider interpretations. In Achbita, the company justified the employee’s dismissal by saying that the perception of its neutrality would be compromised by the wearing of the headscarf, while the Bougnaoui case says that complaints from customers about their employee wearing the headscarf does not determine an occupational requirement and therefore may be considered discriminatory. The distinction may be difficult to grasp, with no clarification on what constitutes indirect discrimination, a legitimate aim and means to achieving such an aim.

Achbita gives credence to an underlying assumption that the public cannot distinguish between the neutrality of a company and a company’s respect for its employee to manifest his/her own specific beliefs. This type of understanding of the public’s nature makes outwardly religious individuals more vulnerable to indirect discrimination under seemingly facially neutral rules.

The Bougnaoui case is only distinguished from Achbita by the absence of a facially neutral rule existing at the company with relation to the occupational requirements. In essence, this distinction only encourages businesses to adopt facially neutral rules regarding the visible expression of beliefs (i.e. religious clothing) with regards to their employees, in order to protect it from related discrimination lawsuits.

The CJEU missed an opportunity to state that the freedom of religion enshrined in the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) protects individuals practicing their beliefs publicly and privately. Moreover, the CJEU did not strongly consider that Muslim women who wear the headscarf might be put at a particular disadvantage compared with other persons because of the visible nature of the headscarf. This was left to the national courts to review though the CJEU could have provided more guidance in this area.

The lack of clarity from the CJEU has far-reaching implications. The outcome of the recent French Presidential election, for instance, resulted in over 30% of the vote for Marine Le Pen from the Nationalist Front party. While she did not win, the elections are evidence that her policies, which may have been considered extreme 20 years ago, are becoming more acceptable. The debate over the definition of secularism and freedom of religion has never been more important to the future of underrepresented groups in Europe. I imagine the CJEU and European Court of Human Rights will have many more opportunities to clarify their legal analysis and position with respect in this area.

Jennifer Ismat is a lawyer in New York and has spent the past 7 years working as an independent consultant with universities and international organizations. She received her Bachelors degree in Political Science and International Relations at Syracuse University and her Masters degree in Global Affairs from New York University. She also earned her J.D. in Law from St. John’s University School of Law. She is currently the Editor-in-Chief of the New York International Law Review. All opinions expressed in this post are the author’s own.