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France: Does headscarf case target Islam?

France's highest court rules on whether a Muslim woman was unjustly fired from a nursery for wearing a headscarf.

Last updated: 25 Jun 2014 11:52
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The Baby-Loup nursery claims it has the right to prevent employees from wearing the headscarf [AFP]

Paris, France - This is an outcome both parties have awaited for five years. On June 25, France's highest court, the Court of Cassation, will issue a verdict on a case that caught the country's rapt attention - the Baby-Loup nursery trial.

In a case that has put religious freedom and secularism in the spotlight in France, 18 judges have been considering whether a private nursery in the suburbs of Paris had the right to lay off Fatima Afif in 2008 for refusing to remove her headscarf at work.

A long-time employee of the nursery, Afif was returning from a six-year period of parental leave when she told her co-workers she no longer wanted to work there. Afif asked to be laid off, which the nursery refused to do. The nurse was then asked to quit her job, which she wasn't willing to do, either. Afif came back wearing a headscarf and refused to remove it. On December 19, 2008, she was dismissed for serious misconduct.

The trial's final outcome will mark the end of a series of rulings whose coverage has become national and highly political. The ruling's effect on religious freedom in the workplace and on laicite - France's concept of secularism - is in question. The case could change the ways in which private nurseries are allowed to limit their employees' religious freedom - although few expect major changes in the legislation that would extend to businesses at large.

Taking aim at Islam?

But some experts say the trial has revealed how France's emphasis on secularism can be used to single out and take aim at Islam.

In France, laws on freedom of religion and secularism are clear. Only civil servants and public service employees are banned from wearing religious symbols at work. In the private sector, including associations like the Baby-Loup nursery, "freedom of conscience is the rule", said Nicolas Cadene, the general rapporteur of France's National Observatory on Secularism.

We always knew our [nursery's] mission wouldn't work if we didn't respect a duty of neutrality ... It was a question of inclusion, of welcoming very diverse children equally, in our common space.

- Natalia Baleato, Baby-Loup director

Restricting that freedom is possible, however. France's labour laws mean that employers can limit religious freedoms at work as long as it is "justified by the nature of the task" and "commensurate to the goal" of the company. Issues such as security, hygiene and organisational goals can thus be used to prevent employees from wearing religious symbols.

Baby-Loup has claimed that its goals for social integration require its employees to be religiously neutral. Baby-Loup, a 24-hour nursery located in the poor and diverse city of Chanteloup-les-Vignes, northwest of Paris, holds inclusiveness as one of its stated aims. Its employees, the nursery ruled in 1990, are required to remain neutral in matters of faith, philosophy, and politics to equally welcome "more than 50 nationalities", said Baby-Loup director, Natalia Baleato.

"We always knew our mission wouldn't work if we didn't respect a duty of neutrality," she said. "It wasn't even a question of religious symbols. It was a question of inclusion, of welcoming very diverse children equally, in our common space." Baleato said at Afif was well aware that "principles of secularism and neutrality" were longtime rules at the nursery.

However Cadene said that such company goals need to be qualified. "Judges can consider that the duty of neutrality, given the nursery's social mission, is legitimate," he said. "But you have to justify it. It can't just be a total, general ban."

So far, the courts have been inconsistent over this case. In 2010 and 2011, both a labour court and the appeal court of Versailles confirmed the legality of Afif's layoff, given her "insubordination" in refusing to remove her headscarf at work. Yet in March 2013, the Court of Cassation judged that the layoff did not conform to France's labour law since Baby-Loup's rule of religious neutrality was too imprecise.

"The nursery's rules were extremely vague," said Claire Waquet, Afif's lawyer. "Companies can ask their employees to respect a form of neutrality - but this need to be clearly stated," she said, adding that such requests also need to be based on a demonstrable company goal. 

Secularism: A 'constitutional principle'

The trial then turned political, pitting religious freedom against secularism. Following the Court of Cassation ruling that Afif's layoff did not conform to  French law, Prime Minister Manuel Valls - who was then interior minister - said he feared that secularism in France had been "put in danger". A few days later, President Francois Hollande weighed in on the case, saying the introduction of a new law could be considered to promote secularism in "private organisations hosting children". The National Observatory on Secularism countered that existing laws were sufficient - and that any debate on new legislation could turn dangerous given the tensions surrounding this debate in France. 

Meanwhile, the Paris Court of Appeal resisted the Court of Cassation ruling, saying that Baby-Loup was a "company of secular belief" and thus could require religious neutrality from its employees.

However Cadene at the National Observatory is convinced that this idea of a "company of secular belief" won't hold. 

"Secularism isn't a belief, it's a constitutional principle," he argued. "If we use this concept, there is a risk that some businesses will use secularism to discriminate."

Jean-Claude Marin, the Court of Cassation's attorney general, seems in favour of confirming Afif's layoff, yet at the same time he also contests the very argument of "secular belief". Baby-Loup, he said, isn't "a company fighting for secularism" - and thus couldn't use the principle as a means to justify layoffs.

It was an attack on religious freedom. Some considered that Fatima Afif was proselytising. How can you do that just by wearing a veil?

- Fatima Achouri, author of The Muslim Employee in France

A mark on Muslims

Yves Nicol, a lawyer and specialist in labour law, is also convinced that secularism isn't a valid concept by which to judge this case. "The debate has changed. I don't think we'll see any legal changes to religious freedom in the workplace happening anytime soon," Nicol said, adding that employers will still be able to limit the wearing of religious symbols as long as such measures respect France's labour law.

"Even if judges confirm the layoff, this doesn't mean all businesses will impose religious neutrality," Cadene said. Because of the specific nature of the Baby-Loup case, Cadene believes it won't apply to wider businesses or lead to an increase in discrimination. 

Fatima Achouri, a management consultant and the author of The Muslim Employee in France, Realities and Perspectives, also thinks the final ruling will not change employment rules much. "Some could adopt 'secularism charters' like the company Paprec did, but it wouldn't have any legal validity. I don't think French businesses will follow this lead," she said. 

What concerns Achouri most is how the Baby-Loup trial was used to take aim at Islam in the French workplace. "It was an attack on religious freedom," Achouri said. "Some considered that Fatima Afif was proselytising. How can you do that just by wearing a veil?"

Achouri was incensed by the excessive political debate that took place around the case. "It was experienced by many as a case against Islam and the veil," she said.

She said that the case hid the fact that "veiled women are largely excluded from the professional world", explaining: "Many French Muslims refusing to remove their veil are either not working, or working in community businesses where they can keep it. Some of them told me they don't even go to job interviews anymore." 

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