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Laws 2013, 2(3), 314-336; doi:10.3390/laws2030314
Article

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

Received: 7 August 2013; in revised form: 6 September 2013 / Accepted: 9 September 2013 / Published: 13 September 2013
(This article belongs to the Special Issue Legally Constructed Gendered Identities)
Download PDF [310 KB, uploaded 13 September 2013]
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 Muslim headscarves; equal treatment; European Court of Justice; bona fide occupational qualification; European Court of Human Rights; German Constitutional Court
This is an open access article distributed under the Creative Commons Attribution License which permits unrestricted use, distribution, and reproduction in any medium, provided the original work is properly cited.

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MDPI and ACS Style

Mushaben, J.M. Separate and Unequal: Judicial Culture, Employment Qualifications and Muslim Headscarf Debates. Laws 2013, 2, 314-336.

AMA Style

Mushaben JM. Separate and Unequal: Judicial Culture, Employment Qualifications and Muslim Headscarf Debates. Laws. 2013; 2(3):314-336.

Chicago/Turabian Style

Mushaben, Joyce M. 2013. "Separate and Unequal: Judicial Culture, Employment Qualifications and Muslim Headscarf Debates." Laws 2, no. 3: 314-336.


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