Verdict in headscarf dispute: discrimination becomes the rule

The education administration recognizes the ruling of the state labor court. Nevertheless, they stick to their guns: no headscarves in general education schools.

Much material for discussion: the headscarf in the school service Photo: dpa

The Berlin Senate accepts the headscarf ruling of the Regional Labor Court (LAG) – at least formally. The state will not appeal the ruling, a spokeswoman for the Senate Education Department announced at the end of last week. But whether female teachers wearing headscarves will soon be able to teach in all Berlin schools is still questionable.

In February, the LAG awarded a teacher compensation of 8,680 euros because she was only offered a contract at vocational schools due to her headscarf. The woman, however, wanted to teach at an elementary school. At the time, the school administration referred to Berlin’s neutrality law, which prohibits teachers at general education schools from wearing conspicuous, religiously influenced clothing, as justification. The law provides for exceptions only in individual cases and generally for vocational schools and second-chance education.

The spokeswoman for SPD Education Senator Sandra Scheeres, Beate Stoffers, said, "We actually made a mistake in the specific hiring process." She added that compensation would therefore be paid. In addition, she said, the hiring procedure will be changed so that the headscarf no longer plays a role in it.

However, Stoffers also said, "We are not questioning the neutrality law." He added that a female applicant with a headscarf could be offered a contract if her grades and other qualifications are good, but only for teaching at vocational schools or second-chance schools. In fact, female teachers with headscarves will continue to be discriminated against. Because if a female teacher wants to teach at elementary schools and only gets the chance to work at vocational schools, then that is discrimination, as the state labor court has clearly stated.

The burden of proof reverses

The school administration cannot now simply advance false justifications to continue rejecting female applicants with headscarves. As long as there is a shortage of teachers at elementary schools and, according to the LAG, even non-specialist lateral entrants are hired, the rejection of a well-qualified female headscarf teacher is a clear indication of the continuation of the discriminatory practice. Under the General Equal Treatment Act, the burden of proof changes when such indications exist.

Now the Senate administration must prove that it did not discriminate. This is likely to be difficult for it as long as its hiring practices continue to follow the Neutrality Act, which the SPD explicitly does not want to change.

Beate Stoffers, Education Administration

"We are not questioning the neutrality law".

In the case in question, the applicant wearing a headscarf had been given to understand during a teacher casting that she could not be employed at an elementary school as she wished because of the neutrality law. The law prohibits state employees such as teachers, police officers and judicial employees from wearing religious or ideological signs while on duty. The teacher had then sued the state with reference to the General Equal Treatment Act for discrimination on the basis of her faith. The LAG ruled in her favor in the second instance. On Friday, the ruling became legally binding with the waiver of an appeal.

The Senate may be able to play coy for a bit until it changes its hiring practices across the board. In the long run, however, it will not be able to prevent this. In its ruling, the LAG clearly stated that Berlin’s neutrality law must be interpreted in light of the case law of the Federal Constitutional Court. In 2015, the latter had declared in similar cases from North Rhine-Westphalia that a blanket headscarf ban for female teachers was disproportionate, as it violated the individual freedom of faith of Muslim women. Such bans are only possible if the wearing of the scarf "concretely" endangers the peace at school.

Need for discussion in the Senate

In light of these supreme court decisions, the LAG had ruled that the neutrality law must be interpreted "in conformity with the constitution" in that the headscarf ban only applies in concrete exceptions. The starting point for this interpretation, as can be seen from the written reasons for the ruling, is a clause in Section 3 of the Neutrality Act, according to which the school senator can allow exceptions to the headscarf ban. According to the LAG ruling, this exception would have to be the rule in the future.

In the Senate, the headscarf conflict is still likely to be a topic of discussion. Interior Senator Andreas Geisel (SPD) and Governing Mayor Michael Muller (SPD) continue to support the law, as does Education Senator Scheeres. But the Green Senator of Justice, Dirk Behrend, and the left-wing Senator of Culture, Klaus Lederer, would like to abolish it. Senate spokeswoman Claudia Sunder said that if senators had a need to talk, they were welcome to do so: "That’s not the case yet."

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