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Separate and Unequal: Judicial Culture, Employment Qualifications and Muslim Headscarf Debates
Political Science Department, University of Missouri-St. Louis, 347 SSB, St. Louis, MO 63121, USA
Received: 7 August 2013; in revised form: 6 September 2013 / Accepted: 9 September 2013 / Published: 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
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Mushaben, J.M. Separate and Unequal: Judicial Culture, Employment Qualifications and Muslim Headscarf Debates. Laws 2013, 2, 314-336.
Mushaben JM. Separate and Unequal: Judicial Culture, Employment Qualifications and Muslim Headscarf Debates. Laws. 2013; 2(3):314-336.
Mushaben, Joyce M. 2013. "Separate and Unequal: Judicial Culture, Employment Qualifications and Muslim Headscarf Debates." Laws 2, no. 3: 314-336.