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Hijab on the Job

Abstract

Muslim women who cover their hair with a hijab for religious reasons face significant discrimination in the United States, including in the workplace. Yet studies show that Muslims who bring religious liberty claims in court prevail only about half as often as adherents of other faiths. As a result, Muslims experience a form of “double discrimination”: first through exclusion or bias in the workplace or by the government, and again when they attempt to vindicate their rights in court. This disparity in outcomes reflects differential treatment in the federal courts that violates the First Amendment’s foundational neutrality principle, prohibiting the government from favoring or disfavoring any religion. The pattern of double discrimination can be especially pronounced in employment discrimination cases because Muslims file a disproportionate number of claims, and for nearly fifty years, Title VII of the Civil Rights Act has provided weak protection for faith adherents, including Muslim women. Employers have been permitted to defeat claims by invoking speculative, minimal, or even overtly biased justifications under the prevailing legal standard. But this landscape has the potential to shift following the Supreme Court’s 2023 decision in Groff v. DeJoy which fortified Title VII’s religious accommodation protections. Although Groff’s new framework promises more robust protection for minority faiths, it remains uncertain whether courts will apply it in a way that meaningfully corrects longstanding disparities faced by Muslim women. This Article offers guidance on how the new standard should be implemented to ensure that Muslim women can participate fully in the workforce while remaining true to their faith.