Separate and Unequal: Judicial Culture, Employment Qualifications and Muslim Headscarf Debates

Joyce Marie Mushaben
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Joyce Marie Mushaben: Political Science Department, University of Missouri-St. Louis, 347 SSB, St. Louis, MO 63121, USA

Laws, 2013, vol. 2, issue 3, 1-23

Abstract: Few European lawmakers have analyzed the implications of Muslim headscarf bans for equal employment opportunity. EU anti-discrimination directives suggest that contradictory member-state approaches will eventually invoke a judicial Community response at national expense. Drawing on the bona fide occupational qualification (BFOQ) standard, this study compares the “judicial cultures” of the U.S. Supreme Court, the German Constitutional Court, the European Court of Human Rights (ECHR) and the European Court of Justice (ECJ). It argues that while the ECJ initially invoked Roman law precepts shared by a majority of its member-states through the 1980s, it has come to embrace Anglo-American norms stressing individual freedoms over state interests. Given their strong support for equal treatment and social inclusion, EU justices will be more likely than member-state or ECHR judges to overturn existing bans on hejab at the workplace, once such a case makes its way onto the ECJ docket.

Keywords: Muslim headscarves; equal treatment; European Court of Justice; bona fide occupational qualification; European Court of Human Rights; German Constitutional Court (search for similar items in EconPapers)
JEL-codes: D78 E61 E62 F13 F42 F68 K0 K1 K2 K3 K4 (search for similar items in EconPapers)
Date: 2013
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