Erica Howard

The Case for a Considered Hierarchy of Discrimination Grounds in EU Law

The EU has legislation, based on Article 13 EC, against discrimination on the grounds of sex, racial and ethnic origin, religion or belief, disability, age and sexual orientation, but the protection provided is not the same for all these grounds. It can be said that this EU legislation creates a hierarchy of discrimination grounds, with racial or ethnic origin at the top, closely followed by sex, with religion or belief, disability and sexual orientation below this and age at the bottom. In this paper, I argue that this hierarchy is the outcome of political pragmatism, rather than of a deliberate consideration of the different grounds. I will suggest that a hierarchy is not necessarily wrong, but that a more considered decision should be made about which grounds need stronger protection. I propose an alternative way of deciding this question, using the distinction of suspect grounds made by the European Court of Human Rights under the ECHR.

Law and the Wearing of Religious Symbols : European Bans on the Wearing of Religious Symbols in Education

Written in accessible language, Law and the Wearing of Religious Symbols is a comprehensive analysis of a topical subject that is being widely debated across Europe. The book provides an overview of emerging case law from the European Court of Human Rights as well as from national courts and equality bodies in European countries on the wearing of religious symbols in educational settings. The author persuasively argues that bans on the wearing of religious symbols in educational institutions in Europe constitutes a breach of an individual’s human rights and contravenes existing anti-discrimination legislation. The book offers a discussion of developments in Europe, including the French ban on Islamic head scarves which came into force in April 2011. In addition to an in depth examination of recent bans, the book also assess the arguments used for imposing them as well as the legal claims that can potentially be made to challenge their validity. In doing this, the book will go beyond merely analysing the bans in place to suggest ways in which educational institutions can most fairly respond to requests for accommodation of the wearing of religious symbols and whether perhaps the adoption of other provisions or measures are necessary in order to improve the present situation. This book will be of particular interest to students and academics in the disciplines of law, human rights, political science, sociology and education, but will also be of considerable value to policy makers and educators as well.

The EU Race Directive: Its Symbolic Value — Its Only Value?

Legislation against racial discrimination makes, it is argued, a clear statement against racism in all its forms and hence has symbolic value. This is expressed in different ways, for example: a declaration of firm opposition to racism; the sending out of a clear political signal regarding the commitment to the fight against racism; a powerful symbol and a statement of intent. This Article will argue that the European Unions Race Directive1 had, at the time of its adoption, significant symbolic value because it made a clear and unequivocal statement to the Unions citizens, to its Member States and to the wider world, that the Union was committed to the elimination of racism and racial discrimination. The plans for enlargement of the European Union, with a number of States joining in 2004, added to the value of the statement: it signalled to these new Member States that the Union expects them to combat racism and racial or ethnic discrimination and to promote and adopt effective measures against such discrimination in line with the Race Directive, as this has become part of the Acquis Communautaire, the body of law that must be adopted by all States wishing to join. But does the Race Directive today, after the deadline for its implementation has passed, still have any symbolic value?

Banning Islamic veils: is gender equality a valid argument?

In political and popular debates, bans on the wearing of Islamic head scarves and veils are often said to be necessary for the promotion of gender equality. In this article, I argue that this is based on a stereotypical view of Islam and of Muslim women which ignores the many different reasons why women wear headscarves and veils. I also argue that bans are unnecessary and even counterproductive to achieving gender equality. For those women who wear these garments because they freely choose to do so, bans are not necessary to promote their equality. For those women who are pressured into wearing headscarves or veils, bans could well work against promoting their equality, because they could prevent them from getting an education and a job and could lead to their isolation from society.

EU Equality Law: Three Recent Developments

This article analyses three recent developments within the EU that have an impact on EU equality legislation: the coming into force of the Treaty of Lisbon, the Proposal to extend the material scope of the provisions against discrimination on the ground of religion and belief, disability, age and sexual orientation beyond the area of employment, and the case law of the European Court of Justice regarding the EU Equality Directives of 2000. It will assess whether these three developments have led to improved protection against discrimination for people in the EU.

School Bans on the Wearing of Religious Symbols: Examining the Implications of Recent Case Law from the UK

This article examines school bans on the wearing of religious symbols and starts with a discussion of the arguments for the imposition of a ban and the counter arguments against these. The question whether a ban on the wearing of religious clothing in schools is a violation of the right to manifest ones religion as guaranteed by Article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) is analyzed using the case law of the European Court of Human Rights and of the English courts in relation to such bans in education. The cases appear to suggest that such bans can be considered an interference with the right to manifest ones religion under Article 9(1), but that these bans can be justified under Article 9(2) in certain circumstances. Two important considerations in the decision of the courts are the way decisions to ban certain forms of religious dress are made and whether alternative ways of manifesting the religion are available.

Islamic headscarves and the CJEU : Achbita and Bougnaoui

This article contains an analysis of the recent CJEU cases on the wearing of Islamic headscarves at work. It is argued that the CJEU had four main options in answering the questions referred by the national courts in these cases: it could have found that the employer’s rules in these cases constituted direct discrimination; it could have held that there was no direct discrimination but that there might be indirect discrimination, but that a very strict justification test should be applied; it could have concluded that there might be indirect discrimination and that a very lenient justification test should be applied; or, it could have found that the wish of customers not to have services provided by an employee wearing a headscarf is a genuine and determining occupational requirement. The CJEU appears to have chosen the third option, and in doing so, has missed the opportunity to take a strong lead in providing protection against religion or belief discrimination and against discrimination of minorities.

The EU Race Directive: Time for Change?

The European Union (ED) Directive against racial and ethnic origin discrimination has been criticized for a number of reasons. The main ones are, firstly, that it places racial and ethnic origin at the top of the hierarchy of discrimination grounds in the ED and that it does not cover discrimination on the grounds of religion or belief; secondly, that its main aim appears to be to establish formal equality or equal treatment rather than a more substantive form of equality; and, thirdly, that it gives only limited protection to third country nationals (nationals of non-ED Member States). In this paper a number of changes to the Directive are suggested in order to make it into a more effective tool in the fight against racism and racial and ethnic origin discrimination.

EU anti-discrimination law: has the CJEU stopped moving forward?

This article analyses the protection which two European Union (EU) Directives, adopted in 2000, provide against discrimination on the grounds of racial and ethnic origin, religion or belief, disability, age and sexual orientation. This protection is not the same for all these grounds, and this has led to what is often referred to in the literature as a hierarchy of discrimination grounds. The article examines these differences in protection against discrimination and the reasons for them and includes an analysis of the influence of the case law of the Court of Justice of the European Union (CJEU) on the development of this area of law. The argument in this article is that the CJEU has generally given a purposive and expansive interpretation to the provisions and has expanded the protection against discrimination in many cases, but three recent cases seem to form an exception to this. Possible reasons for this recent reticence are given.

Freedom of speech versus freedom of religion? The case of Dutch politician Geert Wilders

Dutch right-wing politician Geert Wilders has already been prosecuted once for incitement to hatred and group defamation over remarks and a film criticising Islam and comparing the Quran to Hitler’s Mein Kampf. He was acquitted, but now faces another criminal trial on the same charges concerning remarks he made in March 2014 about ‘fewer Moroccans’. This Article examines Wilders’ expressions which led to both prosecutions. The case law of the European Court of Human Rights on freedom of expression and freedom of religion will be used as yardstick and the article analyses what would happen if these expressions were to come before that Court.