Thinly veiled discrimination : Muslim women, intersectionality and the hybrid solution of reasonable accommodation and proactive measures

Abstract

This article examines the discrimination experienced by Muslim women wearing headscarves in Europe, identifying this as a form of intersectional discrimination. Despite the recognition of intersectional discrimination being hindered by obstacles inherent in the current framework of European anti-discrimination law, a number of academics have suggested that the Court of Justice of the European Union is nonetheless capable of responding to this form of discrimination. However, this article demonstrates that it remains unlikely that the Court will respond to intersectional discrimination within the remit of the current law, as exemplified by its failure to do so in the recent cases of Achbita v G4S Solutions and Bougnaoui v Micropole SA. As it appears that Muslim women's right to wear the headscarf is not adequately protected under the current law, a novel hybrid solution is suggested, based on the introduction of an employer duty of reasonable accommodation of religion in conjunction with proactive measures aimed at combating intersectional discrimination. Such an approach would provide an immediate stopgap to prevent the position of Muslim women in Europe declining further, as well as initiating long-term efforts to tackle the problem of intersectional discrimination.