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GERMANY - CONSTITUTION GUARANTEES
FREE EXERCISE OF RELIGION, BUT HEADSCARVES AT WORK CAN BE COMPLEX LEGAL ISSUE
24-09-2014 - A German labor court ruled Wednesday that church institutions are permitted to ban the wearing of the Muslim hijab headscarf at work if they see it necessary. The ruling was not the first time the issue of headscarves at work was addressed by German courts.
Legal
disputes in German courts surrounding the wearing of headscarves first started
15 years ago, when a Muslim woman filed a lawsuit in 1998. She wanted to keep
wearing an Islamic headscarf while at work as a teacher in the German state of
Baden-Württemberg. Originally from
In the course of the legal dispute that ensued, and with the intention of passing fair judgment, judges searched for a legal basis on all levels. They explored the question whether the Koran stipulates the obligatory wearing of headscarves for Muslim women. Supporters of that thesis see surah 24 as proof. But followers of different legal doctrines interpret the surah differently.
Next, the
judges assessed the question whether German law bans the religiously motivated
wearing of headscarves. But no such document was found. The result was that
Then the legal U-turn: an administrative court in Stuttgart in 2006 lifted the headscarf ban in Baden-Württemberg again, arguing that religious equality had to be maintained and that if Christian nuns were allowed to wear their religious attire then the Islamic headscarf had to be accepted, too. That triggered a situation of confusing legal chaos, requiring assessment on a case-by-case basis.
Why
the controversy continues
Thomas
Brinkmann, a lawyer specializing in labor and social law with Wuppertal-based
law firm Hopfgarten, said he and his colleagues have closely followed cases and
rulings regarding the wearing of headscarves for years. Brinkmann stressed that
German courts do not pass rules willy-nilly, and added that he has not observed
neither an Islamophobic tendency by German courts, nor inappropriate
concessions to Muslims for fear of being accused of anti-Muslim tendencies.
"I haven't seen that," said Brinkmann, adding that no single general
law could suddenly end all legal disputes as freedom of religion is a
guaranteed right in
"You
have to take into account both sides' interests - employees' as well as
employers'," the lawyer said. A Muslim judge in
There is no one nationwide rule regarding the wearing of headscarves for civil servants
The situation is more difficult in the private sector, according to Brinkmann. "The courts tend to look at just how religious the person really is, how long they have been wearing the headscarf for and how often they wear it in their spare time," he said. At the same time, employers generally find it difficult to ban the wearing of headscarves when employees work in positions that don't require them to be in touch with clients who might take offense at the attire. Employers can only push for a headscarf ban when there's a basis for it in the work contract. But employers with a religious orientation, such as the church institutions covered in Wednesday's ruline, for example, of course don't have to accept it if one of their employees expresses their confession of a different faith.
In short,
German courts do not pass arbitrary judgment, which is why the Central Council
of Muslims in
"I have understood every ruling so far," he said.
Brinkmann added that the courts tend to now put a stronger focus on the right to free exercise of religion. "That happens more often than in the past," the lawyer said. And this feeling is shared by many other judicial officers.
According to
figures published in 2009 by the Federal Office for Migration and Refugees, 25
percent of Muslim women in
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