Veiled Muslim women' s rights to employment and free from discrimination - Why veiled Muslim women shall be protected from abusive general ban ...
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Veiled Muslim women' s rights to
employment and free from discrimination
Why veiled Muslim women shall be protected from abusive
general ban
Basri Durohad, 920408-2318
Human Rights
Bachelor Thesis
15 credits
Spring semester 2021
Supervisor: Anders MelinAbstract The practice of wearing hijab has been around for hundreds of years and around the world by Muslim women. It has been revealed that the decision to wear hijab is varied among Muslim women ranging from religious convictions to the consideration of the attire as a tool for empowerment. This paper, which utilizes a normative method with an argumentative structure, will defend the right of veiled Muslim women to employment and free from discrimination, and aims to clarify why the general ban on religious sign, specifically on hijab in this regard, not conforming to the basic principles of human rights . The argumentation will include a discussion and critiques regarding the two core principles in favor of banning hijab in the field of employment and comes to the conclusion that they appear to be built on weak grounds. Furthermore, some relevant conflicting principles regarding the hijab issue within the field of employment will be discussed. The conclusion maintains that veiled Muslim women shall not be pushed into the corner of the society by the two dominant discourses which are now included in the written legislations within the European laws and national laws. The paper concludes by stating that veiled Muslim women shall be accommodated to work and contribute to the European mainstream employment just like females from other groups. Key words: Hijab, Religious accommodation, Right to employment, Right to manifestation of religion belief Word count: 13 123
Table of Contents
1. Introduction 1
2. Theory 2
2.1 Theory 2
2.1.2 The right to manifest religious expression 3
2.1.3 The element of diversity 4
2.1.4 Secularism 4
2.1.5 The principle of neutrality 4
2.1.6 The right to employment 5
2.1.7 Freedom from discrimination 5
2.1.8 The rule of genuine and determining occupational requirements 5
3. Method and aim 6
4. Background 7
4.1 Hijab 7
4.1.2 Purpose of the practice 10
4.1.3 The will to follow the religious ground 11
4.1.4 Hijab is deemed to be a tool for empowerment 13
4.2 Hijab in Europe 14
4.3 Hijab in the European labor market 15
5. Argumentation 17
5.1 Ensuring the principle of neutrality 17
5.2 Standing up for gender equality 26
6. Conclusion 35
7. Works Cited 391. Introduction
The practice of wearing hijab is exercised worldwide by Muslim women and has been
practices for hundreds of years. Due to immigration by Muslim into Europe in the late 20th
and early 21st centuries, there are a quite sizeable population of Muslim within the continent.
As for example, it has been revealed that “ with the impact of immigration, Islam has become
the second religion in the EU, after Christianity; today, Islam is the only monotheism to
experience growth in Europe” (Université libre de Bruxelles 2018, p.26). Accordingly, it is
understood by its very nature that the practice of wearing hijab is also observed in this
continent by many female Muslim women.
In this regard, the primary focus of this paper is the hijab issue within the field of
European mainstream employment, be it public or private ones. Today's European's social
and political climates see the increase of banning hijab both at school and workplace. The
justifications given for banning hijab in some public settings (including at private companies)
range from the call for neutrality to the advocacy of gender equality. It is crucial to mention
here that the boundary between public and private spheres does not really matter any longer
as it has been proved that “ in recent years the neutrality law did not prove to be limited to the
public bodies as intended. The neutrality law also affected the job market [private sector]”
(Tosuner n.d., p.17).
The aim of this paper is to argue in defense of the rights of veiled Muslim women to
employment, freedom of religious expression and free from discrimination. This paper will
argue that the two core principles which are used in favor of banning hijab at the workplace;
the principle of neutrality and gender equality appear to be built on weak grounds which
subsequently are not based upon scientific and empirical facts.
The core stand of this paper on the hijab issue within the field of employment derives
from a previous research by Lara-Zuzan Golesorkhi who maintains that the proper approach
1to adopt in this respect is the framework of religious accommodation on the grounds that the
total immersion in abstract notions such as assimilation, neutrality by European states is not
fruitful one since it will only widen the gap between those from the dominant societies and
those from the minorities side and, according to her understandings, it is demonstrated that “
the implementation of a [religious] accommodation approach moves away from blanket
assertions that Islamic garb endangers neutrality and rather establishes a system in which
restrictions to access the labor market must meet the threshold of proving undue hardship”
(Golesorkhi 2019, p.565).
Accordingly, this paper contends that the primary requirement when it comes to
employment shall be on work-related criteria first such as qualification, skill, knowledge,
competence, etc. On the other hand, it also contends that the ban on hijab shall be applied
only in a very limited and concrete way whereby there is a genuine and determining
occupational requirement to do so. However, the interpretation of the said requirement of this
paper is narrower and more practical than that of the European court.
2. Theories
2.1 Theories
In this section, relevant concepts and principles will be laid out and clarified. Firstly,
it will clarify the principle of freedom of religious expression. It will argue that the aim of the
principle is to accommodate religious citizens to be able to express their religious practices
beyond the spheres of their own households. Secondly, it will delve into the element of
diversity which calls for respect to the cultural diversities whereby any policy which to be
enacted shall go in hand with the current societal structure so as to achieve integration.
2On the other hand, it will also touch upon the principle of secularism and neutrality
which are the core principles the states utilized to ban hijab within the field of employment.
Lastly, it will also outline the right to employment and free from discrimination which are so
crucial for any citizen in the sense that not only will they enable one to earn one's living but
they will also allow one to be able to contribute and be included into the society. Lastly, it
will also present shortly the rule of genuine and determining occupational requirements
which, according to the stand of this paper, shall be the decisive factor whether to ban hijab
or not in those specific occupational circumstances.
2.1.2 The right to manifest religious expression
In line with the basic principle of human rights law, everyone has the right to manifest
religious expression publicly. To begin with, it is not surprising at all because it is
unreasonable if the right to manifest religious expression only applies to the private spheres.
As for instance, article 18.1 of ICCPR stipulates that;
1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include
freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in
community with others and in public or private, to manifest his religion or belief in worship,
observance, practice and teaching.
(ICCPR n.d.)
A good example to refer to here is one of the cases below, the case of Baby Loup of
France. According to the assessment of the Human Rights Committee, France violated the
right of Ms. Fatima Afif to manifest her religious expression because they found that France
could not “...explain how the wearing of the headscarf ran counter the objectives of the
crèche or how it interfered with the rights and freedoms of others” (OHCHR n.d., p.7).
32.1.3 The element of diversity
As mentioned in the introduction section, Muslim population makes up a quite
sizeable number in the continent. On the other hand, however, Europe is the ideal destination
for all people around the world. As such, both the phenomenon of immigration and
globalisation make the societal structures of many societies in Europe so diverse and
pluralists. For that reason, as the focus of this paper is on the field of employment, it is
recognized that “in today's work environment, diversity is an ever-evolving issue that
includes women's rights; cultural and ethnic diversity; age and disability equality, as well as
gender rights (Leonard 2019). Hence, this paper argues that veiled Muslim women shall also
be recognized by the dominant societies in Europe.
2.1.4 Secularism
When mentioning the term secularism there are so many definitions of it. However,
this paper finds a proper definition which seems to be fitting with the issue of the paper.
According to Adhar and Leigh, “secularism seldom remains for long as a straightforward
state refusal to align itself with, or establish a particular faith; rather, experience suggests it
inexorably develops a commitment to actively pursue a policy of established unbelief”
(Henin 2015, p.1). As such, it is not unexpected to see the attempt of secular states such as
France to suppress the interest of religious people who are seen as othered and unruly against
the culture of the dominant society.
2.1.5 The principle of neutrality
There is a recognition of restrictions on the wearing of religious clothing and symbols
including hijab by ECtHR in the name of the principle of neutrality. Its' reasoning will be laid
out in the argumentation section below. As for now, it can be argued that such restriction is
allowed on the basis "to protect the rights and freedoms of others..." (Howard 2017, p.34).
42.1.6 The right to employment
In accordance with the basic principle of human rights, the right to employment is a
very essential social and economic right for everyone as it is the means for daily livelihood.
Due to the fact that this paper deal with a group of people of a minority group, the
contemporary mechanisms of HR really pay close attention to the interests of minority groups
since they are vulnerable to discrimination. As for example, the United Nations Minorities
Declaration stipulates that “the right of persons belonging to national or ethnic, religious and
linguistic minorities [means to] participate effectively in cultural, religious, social, economic
and public life” (OHCHR 2010, p.12). Therefore, the general ban on religious signs by some
European states cannot fulfill the agreement on the international level to protect the interests
of minority groups to a large degree.
2.1.7 Freedom from discrimination
The right free from discrimination is one of those rights which is severely addressed
in today's social and political debates and is enshrined by the basic principle of human rights.
For instance, article 26 of ICCPR stipulates that;
All persons are equal before the law and are entitled without any discrimination to the equal protection of the
law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective
protection against discrimination on any ground such as race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status.
(ICCPR n.d.)
2.1.8 The rule of genuine and determining occupational requirements
This rule is enshrined in the article 4.1 of the Employment Equality Directive as
stated that;
...Member States may provide that a difference of treatment which is based on a characteristic related to any of
the grounds referred to in Article 1 shall not constitute discrimination where, by reason of the nature of the
particular occupational activities concerned or of the context in which they are carried out, such a characteristic
5constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the
requirement is proportionate.
(EUR-Lex 2000)
By its very nature, there is a recognition by the European law to ban religious signs if the
nature and the context of that occupational activity requires it.
3. Method and aim
Without a doubt, the paper is a normative one with an argumentative structure. The
paper will argue against the ban of hijab at the workplaces both in the public and private
sectors in the name of securing secular environments. The very reason why I decide to utilize
this approach in this paper owes to the fact that I believe it to be the most appropriate one in
relation to the issues being examined here. By utilizing the approach, a value judgment about
something is made, that is to say, statements which are articulated to declare how things
ought to be (Normative n.d.).
As for this case, the ban of hijab at the workplace which is built upon abstract
concepts in the name of neutrality and equality will be refuted. Moreover, the denial of the
social reality by the states of the chosen cases in this paper and specifically by the European
Courts with respect to the diversities of the society go against the very basic ethos
(particularly that of the latter) of the contemporary human rights judicial system to interpret
the law beyond those textual doctrines by which the principles of human rights “must be
interpreted in the light of present-day conditions” (Letsas 2013, p.109). From this
perspective, the current structures of the societies of the cases in this paper which are “very
diverse and composed of citizens and residents who are members of many different religious
and ethnic minorities” (Amnesty International 2016, p.12) are not taken into account
adequately by the courts.
6It follows that, the right to employment, the right to religious beliefs and practices,
and free from discrimination of veiled Muslim women are threatened from the dominant
society which uses the judicial system to ban their religious practice altogether. The paper
will argue that using the law to ban hijab at the workplace without taking into account the
diversities of the societies in question are discriminatory towards veiled Muslim women.
Subsequently, the arguments which are articulated in this paper are to oppose those general
policies which are built or justified on assumption or abstract concepts. Moreover, this paper
will point out that it is very likely that those policies will discriminate veiled Muslim women
increasingly and constantly, in particular when the boundaries between public and private
spheres are not clear anymore. In the end, it will also contend that the principle of neutrality
shall be applied in a very concrete and limited way only.
4. Background
In this section the background of the hijab issue will be outlined. At first, it will
sketch what this practice is and what is means for (religious) veiled Muslim women.
Thereafter, it will portray the dominant discourses about the attire in Europe generally and
finishes the section with some verifications of some academic studies of how the wearers of
the attire, hijabis, are treated in the mainstream European labor market.
4.1 Hijab
Consequently, what is hijab? And what does it means for Muslim women?. To begin
with, from a semantic perspective, the term originates from the Arabic word “hajada which
means to cover. Consequently the word hijab can refer to wearing modest clothes in general
that are in line with conservative Islamic beliefs” (Ghumman, Ryan 2013, p.674). Therefore,
it can be argued that the concept of modesty is the root cause of this veiling system. For this
7reason, the next question is what to cover. According to the Islamic mainstream school of
thoughts, there is no consensus on this issue. However, it is understood among Islamic
scholars that women are “ instructed to not “display their beauties and adornments except
what ordinarily appear” and to “draw a veil over their bosoms” [accordingly, Rumaney and
Sriram argue that] this is broadly interpreted as a requirement for Muslim women to cover
their hair, neck, and chest” (Rumaney, Sriram 2021, p.2). They explain the concept of this
veiling system splendidly. They argue that due to the ambiguity of the issue laid down in the
Quran (the Islamic Holy book), extra deliberations extracted from others sources such as the
Hadith which is “the collected traditions of the Prophet Muhammad (Pbuh), based on his
sayings and actions” (Hadith collection n.d.) and the Sunnah which is “everything that has
been related from the Messenger (Pbuh), of his statements, actions, tacit approvals,
personality, physical description, or biography” (Al-Muala 2007) to determine the “correct”
way of practicing the aforementioned concept, modesty. They contend that “ the most widely
practiced form of covering is the headscarf, or hijab, which refers to both the custom of
veiling and the cloth that conceals women’s hair” (Rumaney, Sriram 2021, p.2).
Drawing upon the considerations above, the exact interpretation of the covering of
this Islamic veiling system which this paper is on the same page and going to deal with is the
one which stipulates to cover hair, neck, and chest. On the other hand, taking into
consideration the atmosphere of the occupational life, as for this regard, along with the
contemporary western society; which embedded with much oppositions to hijab, as Zoya, a
veiled Muslim woman worker who used to cover her body more in her free time with the
cloth abaya, argued that she switched her dress code to hijab, a lighter version of the veiling
system, whenever she worked on the grounds that “ a burqa did not allow free movement in
her occupation as a physiotherapist” (Rumaney, Sriram 2021, p.11). This example illustrates
that the concept of hijab already answers the principle of modesty for some Muslim women
8workers who choose the lighter version of the veiling system with hijab; cover hair, neck, and
chest (not more than that), either willingly or unwillingly so as to be able to maintain their
religious identities and, at the same time, adapt themselves to the conditions of their
occupational life. As for her case, her choice not to wear a thicker version of the veiling
owing to the fact that she must express herself well in order to be able to communicate
efficiently with her patients. Even if the example in question is from another context, India,
but due to the current negative hijab discourses in the western society, which will be
illustrated later on, one can anticipate that many Muslim women workers in Europe also
apply this lighter or moderate version of head-covering.
Therefore, the importance of the practice of wearing hijab among Muslim women is
beyond what non-Muslim women can think of, in particular for some feminists who regard
the practice to be a patriarchal norm only, eventually represent the practice to perpetuate
gender inequality. Despite the fact that there might be the case in some settings, As Fadela
Amara, a French Muslim woman, remarks “ French Muslim girls were facing mandatory
wearing of the veil, constant surveillance by 'big brothers'” (Noor 2007, p.37) or as
Mahmudul Hasan found in his study, that some Muslim women wear hijab solely “to conceal
their un-Islamic lifestyle and to impress upon society” (Hasan 2018, p.35) or the fact what
Sanam Noor found in his study that:
In many societies, women have been forced to veil by their families, particularly in patriarchal set-ups. The
same is the case with many Muslim women living in the West for whom the veil is not a choice but a
compulsion. At the same time, there are women who choose hijab as their own independent decision.
(Noor 2007, p.31)
The paper contends that it is still invalid to use the hard apparatus of the state, law, to
ban the practice altogether for the reason that it has been proved by numerous studies that
there are also many Muslim women who choose to wear hijab willingly without any external
pressure surroundings them. As for example, As Hoodfar found that “women who wear a
9hijab in western European states actually do so based on their own decision, and this is a form
of self-identity which has spiritual significance for them” (U.B. Syed 2013, p.435). In
addition, another study also found that all of the participants in that research wore hijab on
their own and felt no “ pressure by their families to wear the hijab” (Hyder, Parrington and
Hussain 2015, p.175).
These kinds of findings are substantiated, as for instance, in the case of Sahin v.
Turkey whereby it was established that “wearing the headscarf [by Ms.Sahin] was her free
choice, based on religious conviction” (Gibson 2007, p.659-60). On top of that, all the cases
in the argumentation section below indicate the similar will of some women of this minority
group who were adamant to wear their hijabs publicly on their own. All in all, this indicates
that the importance of hijab for many veiled Muslim women can be incomprehensible for
many non-Muslim, in particular for those who interpret the aim of the practice to be a
patriarchal norm only without taking into account the fact that the principle of modesty is
crucial for some women, particularly for these religious women who use the attire to maintain
their modesty to fulfil religious/spiritual needs.
4.1.2 Purpose of the practice
As previously mentioned, according to the Islamic texts the purpose of wearing hijab
is to maintain modesty and it has been proved in many studies that the principle is a crucial
part for many veiled Muslim women's lives. On the other hand, it has also been found in
various studies that there is a myriad of reasons that influence Muslim women to put on the
attire on their heads. Therefore, it is worthy to mention some of these so as to portray the
various aspects of the practice in this regard.
104.1.3 The will to follow the religious ground
No doubt, many veiled Muslim women choose to wearing hijab for no reason in
particular but their wills to follow their religious command to dress modestly and maintain
their Islamic identities. As for example, as Droogsma found that the attire is essential for
many veiled Muslim women in the sense that “the practice identifies to others their faith
commitment and is a powerful assertion of their identity” (Ali, Yamada and Mahmood 2015,
p.147). For this reason, according to Droogsma's discovery, the attire is not just a piece of
clothes but something crucial for veiled Muslim women which is used to, first, to fulfill their
religious precept, second, to assert their religious identities.
In addition to that, it has been revealed in another study that the widespread trend of
clothes globally, in particular that of “ western dress codes and lifestyles...prompts many
Muslim women to reaffirm their Muslim identity by wearing the hijab” (Ali, Yamada and
Mahmood 2015, p.147). By definition, the widespread trend of clothes by the western
industries do not go in line with their religious convictions by which the principle of modesty
plays a crucial role in their dress codes. Therefore, by wearing the hijab they are able to
satisfy the two aforementioned objectives above. Subsequently, it is worthwhile to include
some real empirical examples of Muslim women who don hijab solely for a religious ground;
dress modestly. As for instance, one veiled Muslim woman named Rose, who did not wear
hijab initially but changed her mind later on, after being asked upon her choice to wear hijab
with a satirical question by people “ is it because your husband is forcing you to wear that or
is it because all married women have to wear a headscarf?...[she replied]to them that it is my
choice” (Soltani 2016). First of all, her answer indicates her will to put on hijab without being
forced to do that. Second, it demonstrates that it is inaccurate to look at the practice in the
lens of a patriarchal norm only. As the instant example depicts, no one of her surroundings, in
particular her husband, forced her to put on the hijab.
11For that reason, some feminists are mistaken to consider the practice to be a
patriarchal norm entirely in view of the fact that there are women out there who choose to
don hijab solely to follow their religious conviction, in this regard, dress modestly. Most
importantly, this paper contends that it is beyond feminist's concern or anyone's to intervene
and judge their choices to do that on the grounds that everyone is allowed to dress however
they will, as for this regard, the paper argues that hijab is a moderate covering which does not
impede both the wearers and the people who come into contact with the former to
communicate with any problem since the former can still express themselves very well.
Given the fact that hijab is an essential part for many veiled Muslim women and the
exact point of the paper is to look into the hijab issue in the field of employment, according to
Golesorkhi, there can only be two choices for them; unveiled or unemployed- “...that’s the
dilemma for many Muslim women in Europe” (Golesorkhi 2019, p.551). In her opinion, it is
not qualifications or skills of the jobs which are the primary concerns for Muslim women
when it comes to employment but the attire called hijab.
Since it has been established that “hijab-wearing women reported higher religious
commitment and greater commitment to Muslim ideology” (Ali, Yamada and Mahmood
2015, p.153), many veiled Muslim women choose to stick to their religious convictions first
and can even go further to decide to be unemployed. According to Zoya, the above-
mentioned veiled Muslim woman, argued that taking off hijab at the workplace is not even an
option because “ it’s like compromising on your religion and you can’t do that” (Rumaney,
Sriram 2021, p.13). As such, it cannot be rejected that the will of some women to follow their
religious dress codes, as for this case, by wearing hijab is a profound issue so much that they
can even choose to adhere to that over their prospects of employment.
124.1.4 Hijab is deemed to be a tool for empowerment
Contrary to popular perceptions in the western society that hijab is the tool to
subjugate women, various studies assert that the attire is regarded to be an instrument of
empowerment for many veiled Muslim women. For instance, one study argues that veiled
Muslim women do not regard their hijabs “ as a restriction to their potential but more as a
symbol of empowerment. They attend colleges and universities, work in various professions,
have families and friends and enjoy life, all while wearing hijab” (Hyder, Parrington and
Hussain 2015, p.173). One might dispute by referring to the above ground for wearing hijab;
to maintain their religious identities, by which whose purpose can be interpreted to
differentiate themselves from others, nonetheless, as Janet M. Roberts states, “but the hijab
was not meant to set them (or Muslims in general) apart from mainstream society” (M.
Roberts 2007). Therefore, it can be argued that their assertions to wear hijab is more for a
spiritual purpose with different intents.
As for this regard, the attire is worn publicly to empower them in different scenarios.
As for example, the participants of the study by Rumaney and Sriram felt that the practice of
wearing hijab publicly not only was empowering them in some manners but also increasing
their confidences and asserted that “ wearing a hijab permitted them to subvert other
gendered prescriptions such as waxing, or putting on makeup, and instead focus on what was
“important,” such as their career” (Rumaney, Sriram 2021, p.12). On the other hand, one
might wonder in what way does hijab empower them. Based on La Fornara's findings, the
practice of wearing empowers them in the sense that it “forces people to interact with a
woman according to her character and personality [not her appearance]” (La Fornara 2018,
p.476). Accordingly, in the opinion of many veiled Muslim women they are privileged not to
be criticized when it comes to appearance which conforms to the principle of modesty. In
addition, another study found that wearing hijab empowers them in the sense in which it
13gives them “a sense of respect, dignity, and control over who has access to their physical
body” (Wazni, Beckmann 2015, p.329). For this reason, this indicates that the attire does
impact on their lives empirically, in this regard, they are not disturbed by those of their
surroundings in the matter of sexual appearances due to the fact that their bodies are covered
modestly. Even if it might sound sexist to some people, but their reasons which resulted from
their empirical experiences cannot be dismissed.
Accordingly, veiled Muslim women also see their hijabs as something which can
empower them at the workplace. First, as mentioned earlier, it forces people at the workplace
to talk about what really matters in connection with the work itself instead of trivial talks
about their appearances, particularly in highly male-dominated sectors where there is still a
possibility that women might encounter bigoted remarks from male colleagues. Second, due
to the fact that they stand out in a religious sense, as mentioned above, it is more likely for
them to have control over who has access to their physical body. As for this case, their
modest clothes which make their bodies look humble thwart the chance for people with bad
personalities to comment on their appearances offensively.
4.2 Hijab in Europe
According to various studies the mainstream western society has an unfavourable
opinion of the attire. More specifically, it is recognized by numerous scholars that the
contemporary western discourses on hijab are loaded with bad perceptions. At the outset, it
has been discovered that “the description of events [by the media] is rarely positive about
hijab…” (Rasheed and Maria 2020, p.83).
It follows that diverse assumptions about it are articulated. At first, some scholars
argue that the attire or the wearer of it is seen differently or unfamiliar in relation to the social
values, namely, Eurocentric values of the mainstream society. This social phenomenon is
constructed via a process called othering. It is a process “through which difference is
14translated into inferiority drawing a line between ’us’ and ’them’ based on a particular
perception of self and body” (Shaker, Van Lanen and Van Hoven 2021, p.14). In this regard,
the scholars argue that their difference with regard to clothing draws a line between them and
non-veiled women. Subsequently, a division is constructed within the society whereby the
dress code of religious veiled women are seen as unfamiliar or even incompatible with
Eurocentric values; that of the dominant society. For example, some scholars delved into the
notion of otherness in relation to what young Muslims in Amsterdam had to experience so
deeply that they even distinguished different senses of otherness, that is, visual, auditory,
olfactory, and haptic encounters. In this respect, the practice of wearing hijab falls within a
visual othering. For instance, Sara, a young veiled woman, said that “ some people look very
hesitant like I’m hiding something under my hijab and waiting for the right moment to blow
it” (Shaker, Van Lanen and Van Hoven 2021, p.17). The othering in this instant case was
shown via those bitter gazes which indicated their distastes for the attire; which at the same
time, affected the wearer of it, Sara, without any doubt.
4.3 Hijab in the European labor market
Owing to the fact that hijab is seen unfavorably by the dominant society, many
wearers of it who are called hijabis (Definition of 'hijabi', n.d.) face unfavorable conditions
within the European labor market. It has been agreed and proven in the existing literature that
Muslim women who don hijab are treated differently in the field of employment, more
specifically, discriminated against or rejected entirely due to their practices of wearing the
attire. As for example, it has been proven that Muslim women who don the hijab are the
victims of discrimination in the hiring employment process. One study found that “the
chances of being hired and so gainfully employed were 40% lower among Muslim women
wearing the hijab than they were among, otherwise similar, Muslim women not wearing the
hijab in the west” (Ahmed and M. Gorey 2021, p.7). Therefore, as mentioned above,
15considering the fact that they are seen as othered many scholars argue that they are
vulnerable to discrimination in the field of employment on the grounds that, as for this case,
their cultural and religious differences are not so welcomed by the dominant society (note
also the negative dominant discourses about it).
And due to the fact that hijabis are seen as othered and are the victims of religious
discrimination when it comes to employment, some scholars started to turn their attentions to
the theme of exclusion. The unwelcome atmosphere in the field of employment for this
female minority group becomes a laboratory site whereby some researchers have been
scrutinizing whether it could force hijabis to be excluded from the main society. As a matter
of fact, research has shown that some hijabis decided not to step into the mainstream labor
market on the grounds that they did not want to be a victim of discrimination. As for instance,
Maria, a veiled Muslim from France, stated she did not want to return to the mainstream labor
market any longer because “ the experience of total exclusion convinced her that she had no
place in the world of work”(Karimi 2018, p.428). The example of this instant case is one of
the many hijabis in France who has decided to turn their back on mainstream culture. The
researcher in question, Hahane Karimi, found that the participants in the study not only
turned their back on the mainstream labor market but they went even further to make their
decisions to become entrepreneurs on their own. Karimi further uncovered that they did it not
because of their genuine interests in the business branch but due to “ their experience of
discrimination, which prevents them from accessing the job market” (Karimi 2018, p.423).
On the other hand, it has also been revealed that some employers hold bad perceptions
about hijab which ultimately reduce the chance for veiled Muslim women even to get a job.
Without a doubt, the diffusion of bad ideas about hijab generates negative stereotypes,
attitudes, and perceptions towards Muslim women. As for example, a Pakistani sales assistant
revealed that she was once mocked by her interviewer who said the following sentence to
16her: “... would you be able to work evenings being a Muslim, or do you know there are a lot
of men working here so would your family mind and do you wear a scarf at all” (Dale 2002,
p.78). This illustrates that the interviewer already held a specific perception about the
interviewee despite the fact that they were a stranger to each other. Moreover, the emphasis
of the conversation was no longer on her qualifications and skills but on her religious and
family commitment. As such, it entailed a hostile atmosphere between the two sides. The
aforementioned example just confirms a scholarly discovery that “ hijabis are likely to be
stigmatized due to their affiliation with Muslims, a group that is often associated with
negative stereotypes, attitudes, and perceptions” (Ghumman and Ryan 2013, p. 675). This
indicates that not only their dress codes call for a dispute in the field of employment but their
affiliation with Muslim also makes it more difficult for them even to get into the labor
market.
5. Argumentation
In this section the most prevalent arguments in favor of banning hijab at the
workplace will be laid out. The two main principles which are used to endorse the ban of
hijab at the workplace will be examined in order; the principle of neutrality and gender
equality respectively. After that, each will be followed by the counterarguments which are the
stand of this paper on the issue.
5.1 Ensuring the principle of neutrality
The most fundamental reasoning behind banning the hijab at the workplace either by
the state-public employer or the private employer derives from the intent to pursue a neutral
image whereby any visible religious signs, as for this case, such as hijab, a religious attire, is
not allowed to be worn. It is crucial to mention that such an arrangement is recognized both
17by national and international legislation. As such, it is recommendable here to look at the
reasonings of some cases of hijab disputes articulated both by some national courts and
European courts whereby their arguments in favor of the restriction on the practice of
wearing hijab at the workplace are identical in the sense that the arguments against the
practice of wearing hijab aim to protect the neutral interests of the employers in question.
The first case concerning a veiled Muslim woman employee called Fatima Afif, who
worked as a childminder at Baby Loup in Chanteloup-Les-Vignes, north-west of Paris, was
fired for her “insubordination and misconduct” (Chrisafis, 2013) for refusing to take off her
hijab. Even if the first ruling of the Court of Cassation on 19 March 2013 was in favor of her
beforehand on the grounds that the dismissal of her was inappropriate and subsequently “had
discriminated against its employee on religious grounds” (Hubert, 2013), but the two last
rulings by the Paris Court of Appeal and subsequently by the Court of Cassation were against
her. As for the former, it ruled that:
“ the crèche’s commitment to religious neutrality is akin to a religious belief and thus grants it’s an exemption
from anti-discrimination law: as the crèche believes that neutrality will allow it to ‘transcend multiculturalism’, the
crèche can require it from its employees”.
While for the latter ruled that:
“ the crèche’s internal policy of religious neutrality is legal to the extent that, although it rests on a general
internal rule...it only applies to a small number of people given the organization’s small size and because childcare
is at stake”
(Hennette Vauchez 2017, p.288)
According to Eoin Daly, an Irish scholar, argues the dismissal of Mrs. Afif was
upheld by the two last rulings on the grounds that they recognized “ Baby-Loup as an
entreprise de conviction (or entreprise de tendance)—roughly, a belief-based enterprise—
which gave it a legitimate interest in maintaining a workplace environment free of religious
signs” (Daly 2016, p.219). With it, he means the courts found the arrangements of the crèche
were based on a secular conviction, a belief-base ground, which rejected any visible religious
18symbols to be displayed at the workplace whereby the consideration on the principle of
neutrality was underlined, in particular, when the interests of the children were weighed
against. This echoed the comment on the case by Marie Peyronnet and Christophe Rade that
“merely ‘the presence of children and parents’ that ‘justif[ies] a crèche employee having to
comply with a duty of neutrality” (Daly 2016, p.223). Drawing upon the wordings of the
rulings and the duo's, the emphasis on the religious neutrality of the employee was stressed in
this case so as to keep the workplace free from the influence of religious symbols worn by
one of its employee. However, according to Daly, it was still questionable if the consideration
of the religious neutrality of the employees of the crèche could be applied in this case as the
crèche was a private one. Thus, made Mrs. Atif a private person too. However, the Court took
into consideration the nature and the context of her occupational life, that is, “her contact
with patrons and the public[the children and their parents]—that justified the restriction in her
specific case” (Daly 2016, p.220). This indicates her right to manifest her religion was
restricted on the grounds that her impartiality was suspicious due to her religious dress code.
It follows that hijab itself is seen not compatible with the principle of neutrality and
the impartiality of the wearer of it is questioned, more frankly in the legal doctrine, rejected.
This can be delineated apparently in the case Mrs. Lucia Dahlab, a veiled Muslim woman
worked as a primary-school teacher, was relieved of her duty due to her practice of wearing
hijab. In their defense before the Strasbourg Court the government of Switzerland, following
the Federal Court's assessment, defended the dismissal of Mrs.Dahlab by stating that “ the
measure prohibiting the applicant from wearing an Islamic headscarf was based on the
principle of denominational neutrality in schools and, more broadly, on that of religious
harmony” (Dahlab v. Switzerland 2001). In the same manner with the case of Baby-Loup, the
Government emphasized one important dimension of the case that the state primary-school
system in Switzerland “were non-denominational, as laid down in Article 27 § 3 of the
19FederalConstitution…” (Dahlab v. Switzerland 2001, p.8). Subsequently, as a teacher at a
State school, Mrs.Dahlab was required to respect the principle of secularism whereby her
right to manifest her religion was restricted so as to preserve the secular atmosphere at the
school.
In reviewing the arguments laid out above by the respective national courts, French
and Swiss, the pursuit of the neutral characteristic of the workplaces in question was
emphasized so as to protect the secular public order in the way the states deemed most
suitable for the secular societies. In this regard, according to Zaineb Malick, who studied the
norm of wearing hijab in relations to western culture, argues that “ the refusal to conform to a
secularized identity (and wear “ostentatious” religious symbols) is interpreted as disloyal to
the Republic” (Zaineb 2012, p.61). As for this case, two veiled Muslim women employees
were regarded to be disloyal to the principles laid down in the republican constitutions and
who could disrupt the social harmonies of the secular societies by the visibilities of their
religious dress codes. Accordingly, utilizing the internal policy in the first case and the
authority interference in the second case were deemed necessary in order to ensure the
principle of neutrality which eventually protect the secular characteristics of the workplaces
in question. As such, it can be argued that the principle of neutrality seems to be the
backbone element of the state mechanism which is utilized so as to protect the secular public
order, as for this case, the public order of the workplace against a non-western norm, hijab.
On the other hand, there is a recognition (by the Court of Justice of the European
Union) that private companies can impose an internal rule banning all visible signs of
political, philosophical and religious beliefs at work. To begin with, the Court of Justice of
the European Union (CJEU) issued its first two landmark decisions regarding this issue on 14
March 2017. As for this regard, we will look at one of the cases, that is, the case of Ms.
Samira Achbita, a receptionist of the company G4S. Ms.Achbita was dismissed from her
20work due to her “continuing insistence on wearing the Islamic headscarf at work” (Court of
Justice of the European Union 2017) after the company she worked with introduced a new
internal (neutral) policy which banned all visible signs of political, philosophical and
religious beliefs. After all her domestic legal proceedings were exhausted, the case reached
before the CJEU, which subsequently ruled in favor of her former employer. The Court
considered that G4S’s internal rule “ban of all visible signs of political, philosophical or
religious beliefs at work did not constitute direct discrimination...it further stated that a
difference of treatment does not amount to indirect discrimination if it is justified by a
legitimate aim and the means to achieve it are necessary and proportionate” (United Nations
Human Rights office of the high commissioner n.d. p.10). With that being argued, as
Vauchez explains, the Court postulated that “a general policy of neutrality of all convictions
(religious, political, philosophical) could be imposed by employers without constituting
discrimination”(Hennette Vauchez 2017, p.312). Thus, in the same manner with those
arguments by the national courts above, the Court gave the employer much discretion to
decide whether or not to ban hijab so as to uphold the neutral atmosphere at the workplace.
Moreover, the Court considered the company was allowed to maintain its neutral attitude in
doing its business with the customers, as specifically mentioned in point 38 in the judgement
that:
“An employer’s wish to project an image of neutrality towards customers relates to the freedom to conduct a business
that is recognised in Article 16 of the Charter and is, in principle, legitimate, notably where the employer involves in
its pursuit of that aim only those workers who are required to come into contact with the employer’s customers”
(Wouters and Ovadek 2021, p.439)
Unlike in the case of the Baby-Loup crèche above, the internal rule of this company did have
a clear purpose, that is, as stated above, project an image of neutrality towards its customers.
Subsequently, it is required for those employees who have to come into contact with the
customers to follow that policy. However, the emphasis of the last sentence does resonate
21with the argument in the case of the Baby-Loup crèche, that is, the need to come into contact
with the public. Relying on this element, the Court determined that the interest of the
employer (the freedom to conduct a business in a neutral manner) shall prevail over the
interest of Ms.Achbita to manifest her religious expression. As such, it can be argued that the
pursuit of neutral image by employers, not only for public employers alone but also for
private employers, seems to get a firm green light from the judicial system to pursue the
neutral characteristics of the workplace in the way they deem acceptable.
However, this paper contends that the increasing support for the ban on hijab at the
workplace in the name of neutral discourses in the European society goes against the social
reality of today's diverse society, by which religious discrimination against veiled Muslim
workers is defended by such discourses. As for example, critics of this issue have pointed out
that the problem with the hijab issue in contemporary European society derives from the
stubbornness of pillar social actors such as policy makers, courts, and governments to
acknowledge the diversities of their societal structures. For instance, Zahran Dabbagh, in
analyzing the European Court of Justice Judgment in relation to Hijab Prohibition at the
workplace in the case of Ms.Achbita above, argues that it was unsatisfactory of the Court to
accept the general neutral discourse too easily, as she argues that "even though, the judgment
was generalized over everyone and for all kinds of manifesting the beliefs, but in the social
reality...just Muslim women who are affected because the only way to manifest their religious
belief is through an obvious symbol which is the Islamic veil” (Dabbagh 2017, p.28). She
means that there was a lack of emphasis on the social aspect in their judgement, that is, the
diversities among social categories (religious employees) and by which leading to overlook
the lived experiences of veiled Muslim women employees such as Ms.Achbita. As she further
explains that “...the disadvantageous position of Mrs. Achbita is derived from dismissing the
social aspect from the legal context...[by the Court]” (Dabbagh 2017, p.22). As such,
22according to her understanding, the Court should not determine the case pursuant to the legal
doctrine solely but should also include the social aspect of it too, e.g. the gender, race
perspectives so as to get a more objective ruling which does not include only legal
perspectives but also social perspectives.
In addition, the paper contends that there has also been a controversial issue regarding
the neutral position of the state. As for instance, the French authorities argue that their ban on
hijab would be applied only to large “ostentatious religious symbols...[and it does not apply
]to normal sized crucifixes worn around the neck” (Human Rights Watch 2010). This does
not but clearly shows a double standard because of the fact that such an imposition would
only affect veiled Muslim women on the grounds that their religious dress code is so visible
compared to another religious symbols like that of the aforementioned case which it can be
worn and concealed at the same time. However, it is impossible for veiled Muslim women to
do that. Therefore, it is questionable whether such an imposition really treats religious people
equally.
Then, one might wonder in what way does hijab have something to do with the term
“neutrality” or “impartiality” when it comes to employment. According to some scholars,
they argue that one of the main reasons for the ban of hijab at the workplace is due to the fact
that it is seen as a powerful external symbol which the wearer of it cannot be regarded to be a
neutral person in the (secular) public order of the workplace. Take the case of Ms.Dahlab as
an example, the Court argued that “it “appears difficult to reconcile the wearing of an Islamic
headscarf with the message of tolerance, respect for others...that all teachers in a democratic
society must convey to their pupils” (Medda-Windischer 2012, p.487). In this respect, Ms.
Dahlab could not work as a teacher at the public school because her neutrality was dismissed
due to the attire on her head being seen to have a powerful effect on others, particularly on
her pupils . However, this paper contends that both this kind of a too general restriction on
23hijab and the Court's assessment on hijab to be a powerful external symbol (which, according
to Dabbagh, built on a liberal legal doctrine) are unsatisfactory on the grounds that it based
on assumption only; not on empirical facts. The Court's argument which seems to make the
equation between hijab and intolerance is unsubstantiated in view of the fact that the practice
of wearing hijab by veiled Muslim women is performed for the sake of their own and, as
mentioned earlier, the attire is not meant to set them apart from mainstream society.
Moreover, it is crucial to mention one important fact of the case which clearly stated in the
judgement that “she had previously worn a headscarf in school for a few years without
causing any obvious disturbance” (European Court of Human Rights 2013, p.4). As such, the
ban which did not take into account the real lived experience of veiled Muslim workers such
as Ms.Dahlab and which built on assumption cannot but deemed to be unproportionate.
Therefore, Turan Kayaoglu is right to claim that “the Court...rel.[iance] on
government assertions about Islam and wearing of headscarves—assertions that were not
substantiated by any evidence or reasoning” (Kayaoglu 2014, p.356). As for this case, the
Court ruled “[i]t cannot be denied outright that wearing of a headscarf might have some kind
of proselytizing effect...” (Kayaoglu 2014, p.355). According to his understanding, such an
assessment by the Strasbourg Court, which was in line with the assessment from the national
Court, grounded on the assumption about hijab in the mainstream society which could not be
supported by any scientific evidence, that is, the claim about hijab having some kind of
proselytizing effect on young children. Therefore, it is unproportionate to have a general ban
of hijab for veiled Muslim women who might have a dream to work, as for this case, with
young children either as a teacher (as in the case of Ms. Dahlab) or as a childminder ( as in
the case of Ms.Atif).
On the other hand, according to Djamilia Latrèche, a veiled and experienced
childminder in Paris, said “currently, I look after three children from families of all beliefs,
24Christian to atheist. They have never minded about my headscarf” (Chrisafis 2013). Her
story does tell us an important message regarding the practice of wearing hijab by veiled
Muslim workers, that is, it does not have that powerful effect or proselytizing effect on
others, as for this case, not even on children, who are vulnerable to external factors most.
All in all, relying on the arguments in favor of banning hijab in the cases above, one
can argue that the pursuit of neutral images by the employer is defended so as to protect the
secular public order of the western society. By its very nature, some critics argue that hijab is
seen to be a threat to the western secular society. For instance, Falguni A. Sheth, in studying
the hijab issue and its relation to the dominant (American) liberal culture, argues that the
practice of wearing hijab is seen to be “unruly because...[it] conspicuously violates a
dominant neutral cultural or political norm” (Sheth 2006, p.456). According to the
understanding of the scholar in question, the attire itself is to be regarded as something
obstinate resistance to the main secular cultural and social norm which rejects any visible
religious practice or sign to be displayed in the public sphere. Even if the scope of the study
of the scholar in question is too broad and not for Europe in particular, but her choice to
include the key terms such as western and secular along with the utility of the latter term by
the European judicial and political branches to ban hijab in the field of employment make her
case-study corresponds well with the hijab issue of the latter side. Therefore, it can be argued
that the ban of hijab at the workplace is grounded on the abstract policy of neutrality which
aims to preserve the importance of the principle of secularism not specifically on work-
related criteria.
On the other hand, according to Zaineb, this cannot but creates a tension in the society
for the reason that “ in essence, secularism promotes assimilation, rather than the
advancement of distinct cultural norms and practices” (Zaineb 2012, p.61). By definition ,
such a measure, according to Kayaoglu, will put any religious act to be in a trouble state
25which ultimately can be outlawed in the name of secularism ( by utilizing the policy of
neutrality) just like in the case of Refah v. Turkey in which the Court concurred with the
Turkish Constitutional court to dissolve a well-known political party, the Welfare Party, on
the grounds that the activities of the party were “contrary to the principles of secularism”
(Boyle 2004, p.5).In this regard, he argues the ban on hijab (including the ban at the
workplace)“...had the effect of elevating the principle of secularism over human rights”
(Kayaoglu 2014, p.358).
As such, the move of the Court contradicts the supposed task of it, that is, to value the
principle of human rights over the principle of secularism. As for this case, this paper argues
that veiled Muslim women's right to employment and inclusion shall prevail over a too
general restriction on hijab which built on the abstract notion of secularism with the approach
of applying the policy of neutrality. Moreover, Amnesty International declares companies
that having the policy of neutrality do not have a legitimate ground to treat veiled Muslim
women workers differently than others as it postulates that “pursuing a neutral corporate
image or satisfying clients’ wishes are not legitimate aims under international and European
human rights law to restrict human rights” (Amnesty International 2016, p.12). Drawing upon
this consideration, it seems discriminatory to exclude veiled Muslim women from the
mainstream field of employment in the name of secularism which, as mentioned earlier, built
on the principle of neutrality.
5.2 Standing up for gender equality
As mentioned earlier in the paper, gender equality is one of the most prevalent
arguments against the practice of wearing hijab. As Jill Marshall says “in the context of the
Islamic headscarf debate, arguments in favor of bans have been based on, among other
reasons, gender equality” (Marshall 2008, p.638-639). It cannot be denied that the practice in
question is exercised in the name of religion, namely, Islam for many women. The opponent
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