Headscarf restrictions in private employment: The added value ofan intersectional discrimination approach to the case law of theeuropean court of human rights and the european court ofjustice
Başlık çevirisi mevcut değil.
- Tez No: 721958
- Danışmanlar: Belirtilmemiş.
- Tez Türü: Yüksek Lisans
- Konular: Hukuk, Law
- Anahtar Kelimeler: Belirtilmemiş.
- Yıl: 2018
- Dil: İngilizce
- Üniversite: Universiteit Leiden
- Enstitü: Yurtdışı Enstitü
- Ana Bilim Dalı: Belirtilmemiş.
- Bilim Dalı: Belirtilmemiş.
- Sayfa Sayısı: 75
Özet
Özet yok.
Özet (Çeviri)
Discussions regarding the use and restriction of headscarves in private employment have arisen in the case law and parliamentary debates of many European states and restrictive practices have been adopted at an institutional, structural and discursive level at work even if not in legislation. Such restrictive developments have raised concerns about the consequences for minority Muslim women's integration and enjoyment of their rights in an equal manner. The ECtHR and the ECJ have dealt with restrictions on the use of headscarves in employment. However, they have not developed well established case law with regard to private employment and the existing case law does not seem to present comprehensive standards and clear guidance for European states. Furthermore, neither of the courts has made the outcome of their judgments very clear. Thus, they have left space for clarification and further development in the case law. Considering the space left; this thesis aims to contribute to the development by referring to a different approach the ECtHR and the ECJ could take toward headscarf bans in private employment: an intersectional discrimination approach. The thesis aims to answer the following question: What can an intersectional discrimination approach add to the current case law of the ECtHR and the ECJ regarding restrictions on the use of headscarves in private employment? For answering such question it first demonstrates the concept of intersectional discrimination and its significance for addressing real life experiences that result from the correlation of different grounds of discrimination. It then briefly analyses the real life experiences of Muslim women and demonstates that restrictions on headscarves are not only linked to discrimination on the ground of religion but also sex and race mainly due to disparate impact on certain ethnic minority groups and women. The thesis then analyses the current case law of the ECtHR and the ECJ on restrictions toward use of religious symbols in employment. The analysis shows that an intersectional approach was adopted by neither the ECtHR regarding public employment cases nor the ECJ in Achbita and Bougnaoui concerning private employment cases. The courts do not analyse whether there is disprate impact on specific ethnic groups or women or even give recognition to the specific exclusion individuals wearing headscarves may face consequent to restrictions. The analysis further shows that ECtHR in public employment cases and the ECJ in Achbita and Bougnaoui do not adopt a strict approach toward restrictions on the use of headscarves but also that it is not clearly determined that the courts will maintain these lenient approaches in future cases on use of religious symbols in private employment. In Eweida which concerns private employment the ECtHR deviates from the lenient public employment cases but it is not clear whether this would hold true for cases on use of headscarf in private employment or whether it is case specific. Moreover, the cases of Achbita and Bougnaoui also cause confusion as to the consequences for national courts and authorities due to the minimal approach of the ECJ. This analysis concludes that considerable space left by the ECtHR and the ECJ for further interpretation in future cases paves the way for exploring intersectional discrimination as a possible direction in private employement cases concerning restrictions on the use of headscarves. Furthermore, the thesis explores the approach of the ECtHR and the ECJ toward the grounds of race and sex due to its significance for analysing the added value of a possible intersectional discrimination approach the courts could take. The analysis demonstrates that the ECtHR and the ECJ gives importance to eliminating race and sex discrimination and applies justification test for indirect discrimination strictly. It is found that such strictness of the scrutiny is affected by the field for both grounds and state consensus on the specific issue at stake for the ground of sex. As to the ECJ, the strict approaches in the cases of CHEZ and Bilka are seen to be applicable to the field of employment. Thereafter, the thesis analyses whether the courts could adopt an intersectional approach in light of the legal framework and case law. The analysis shows that the ECtHR does not face many obstacles while the ECJ faces limitations in acknowledging intersectionality. Consequently, it is found that the ECtHR can take an intersectional approach considering the combination of grounds while the ECJ needs to establish discrimination on the ground of race, sex and religion separately in order to recognise the combined effect of the grounds. Following this, the thesis shows ways in which the ECtHR and the ECJ could adopt an intersectional approach in light of the confines presented by the legal framework and the case law and then presents the added value of such an approach. It is found that both the ECtHR and the ECJ could acknowledge intersectionality in two different ways. The ECtHR could acknowledge intersectionality either through analysing the case in terms of indirect discrimination on the combination of the grounds of race, sex and religion or recognising the combination of the grounds as a factor in the balancing test. The assessment following the acknowledgement raises complexities as to the applicability of the strict approach in race and sex discrimination cases. Questions attached to state consensus concerning headscarf restrictions in private employment causes unclarity and the involvement of horizontal relations results makes full application of a strict approach questionable. Nevertheless, the strict approach is seen to be partially applicable. Consequently it is suggested that partial application would not result in the employee's interests to prevail yet it would urge states to give adequate attention to the employee's interests at least equally to the employer's side. Theafter the added value of the adoption of an intersectional approach is found to be considerable deviance from the approach in the public employment case law on the use of headscarf in which state neutrality prevailed without equal consideration of both sides of the balancing test and consistency in the application of the balancing test in private employment. Moreover, the thesis finds that the ECJ could establish indirect discrimination based on the grounds of race, sex and religion separately in one case or consider the disparate impact toward protected groups based on these grounds in the balancing test of an analysis based on the ground of religion. The ECJ does not face many problems concerning the applicability of the strict approach unlike the ECtHR. As a result of this, it is found that headscarf restrictions would hardly pass the strict justification tests in CHEZ and Bilka once the Court accepts the disparate impact on either the ground of race or sex or both of them. The added value of such an approach is clear application of standards and more protection for employees in national law and thus clear deviance from the unclear and lenient approach in Achbita and Bougnaoui. Furthermore, the thesis mentions that adopting an intersectional approach and therefore the effect of the resulting added values is limited since establishing discrimination on the grounds of race and sex concerning headscarf restrictions is dependant on the specific context. Nevertheless, the added value of the courts adopting an intersectional discrimination approach to the currently unclear and lenient case law on restrictions on headscarves in private employment is found to be significant especially for the ECJ. The thesis concludes by reiterating the limited but significant added value of an intersectional discrimination approach to the current case law of the ECtHR and the ECJ concerning restrictions toward headscarves in private employment and suggests that such development in the case law would be the most suitable approach for enhancing inclusion and integration of minority Muslim women and also equal enjoyment of liberties.
Benzer Tezler
- Müslüman kadın ve sosyal medya - başörtülü dindar kadınların 'mahremiyet' algılarındaki değişimin sosyal medya örneği üzerinden incelenmesi
Muslim woman and social media an analysis of change in the perception of 'privacy' of headscarfed religious women from the social media case
ZEYNEP BERRE ÖZÇELİK
Yüksek Lisans
Türkçe
2016
GazetecilikAnkara ÜniversitesiGazetecilik Ana Bilim Dalı
PROF. DR. HALUK GERAY
- Türkiye'de sivil toplum kuruluşlarının ortaöğretim mesleki din öğretimine yaklaşımları
Approaches of civil society organizations in Turkey towards secondary vocational religious education
AKİF SAVAŞ
Doktora
Türkçe
2024
Dinİzmir Katip Çelebi ÜniversitesiFelsefe ve Din Bilimleri Ana Bilim Dalı
PROF. DR. MEHMET BAHÇEKAPILI
- Hava lidar verileri ile enerji nakil hatlarının yer seçiminde jeomorfolojik haritalama tabanlı bir yaklaşım
A geomorphic mapping based approach to site selection of energy transmission lines with airborne lidar data
ABDÜSSAMET YILMAZ
Yüksek Lisans
Türkçe
2021
Jeoloji Mühendisliğiİstanbul Teknik ÜniversitesiKatı Yer Bilimleri Ana Bilim Dalı
DOÇ. DR. TOLGA GÖRÜM
- Başörtüsü ve sekülerleşme tartışmaları: Başörtüsünü çıkaran kadınlar
Headscarf and secularization debate: Women who take off headscarves
HATİCE SÖZERİ
Yüksek Lisans
Türkçe
2022
SosyolojiMimar Sinan Güzel Sanatlar ÜniversitesiSosyoloji Ana Bilim Dalı
DR. ÖĞR. ÜYESİ BARIŞ BAŞARAN