The EU Court of Justice published two reports on 27th March. Both concerned the legitimacy of firms banning their employees wearing Islamic headscarves. This being the EU, the Court came to opposite conclusions. In one, the ban was upheld as it was the firm’s general policy. In the other, the ban was disallowed as it was merely to satisfy customers.
The key finding in the former case was that the ban, to be acceptable, had to be “objectively justified by a legitimate aim, such as the pursuit by the employer in its relations with its customers of a policy of political, philosophical and religious neutrality, and the means of achieving that aim were appropriate and necessary.” The key word, amongst several hundred words of verbiage, turned out to be “objectively”.
The latter case concluded that the ban “was not a genuine and determining occupational requirement justifying a difference in treatment of the worker”. This is curious: banning all headscarves for everyone cannot be discriminatory whereas banning Islamic headscarves clearly is. In this case, it would appear, all headscarves were banned. But the crunch comes at the end: Banning the headscarves was not “a requirement that was objectively [my emphasis] dictated by the nature of the occupational activities concerned or of the context in which they were carried out. It could not, however, cover subjective [my emphasis] considerations, such as the willingness of the employer to take account of the particular wishes of a customer.”
The Times headlined this as “Need to humour customers does not justify Islamic headscarf ban”. The Times appears to agree that humouring customers is a silly and subjective thing that no right-minded company should do.
This attitude harks back to the days when judges and other gentry would not allow their children to take up anything so vulgar as trade, except perhaps the wine trade. Never mind being below the salt, to be caught actually selling anything cost one a place at the dining table altogether.
Objective reality is that all companies depend on the cash provided by customers and their employees owe their livelihood to that too. Customers are entitled to spend their money how they wish. They have freedom of choice. They may not do so on the basis that judges would like them to, but that is for the customers to decide, not judges, and there is nothing subjective about it.