Anti-Muslim Discrimination: Remedies and Failings

Tufyal Choudhury is lecturer in law at the University of Durham.

 

 

The urgent need to tackle the discrimination faced by Muslims in Europe has emerged as a key concern of European policymakers. Discrimination is considered a significant contributor to alienation and disaffection among Muslims, a barrier to integration, and a risk factor for radicalisation. Developing effective and coherent policy interventions requires a clear understanding of the nature of the discrimination faced by Muslims as well as an assessment of the strength and limitations of existing policies.

 

The first part of this paper examines the nature of the discrimination faced by Muslims in Europe. It sets out some of the research and statistical data available on performance by minority groups in relation to key socio-economic indicators. While this provides important information about the disadvantage experienced by minority groups which are predominantly Muslim, the paucity of information on Muslims as a group limits our understanding of both the disadvantage and the discrimination they encounter.

 

In examining the data, I explore the difficulties of identifying what role “discrimination” plays in Muslim disadvantage. Furthermore, even when there are sufficiently robust data to allow statistical regression that can identify an “ethnic”, “religion” or “migrant” penalty, the nature of the discrimination that Muslims face remains complex and varied. I go on to suggest that the main grounds of this discrimination vary between different Muslim groups. For some, the first order of discrimination may be on the basis of nationality, refugee or immigration status; for others, colour and race may be the prevalent mode of discrimination; and for yet others it may be religion. Most importantly, attempting to identify one particular ground of discrimination overlooks the potential for discrimination on intersectional and multiple grounds. Finally, even when it is possible to identify religious discrimination, the experience and impact of such discrimination can vary among Muslims.

 

Part two of this paper explores the possibilities, potential and limitations of current European Union policies intended to tackle discrimination. It begins therefore, by setting out the developments in EU anti-discrimination legislation and policy, with a focus on the “Directive” (a binding legal act) passed by the Council of Ministers in 2000 to tackle discrimination in employment on the grounds of religion and belief (the Framework Directive). I argue that a fundamental constraint on the use of the available legal tools to counter discrimination is the absence of any consensus on what equality for Muslims would look like. I then explore in particular some of the deficiencies of the Framework Directive. These include the limited scope of its application, its failure to address multiple or intersectional discrimination, and its continuation of an approach that relies on individuals’ making complaints.

 

 

I. DISADVANTAGE

AND DISCRIMINATION 

 

Socio-Economic Disparities 

Disadvantage is measured through data. Patterns of disadvantage revealed by data are, in part, a product of prior decisions about how to categorise people. These decisions, in turn, reflect political decisions about which patterns are likely to be important and which groups deserve protection. Britain is one of the few EU member states where the national census includes a question on religion and thus allows the data to be disaggregated and analysed by religion. Many European countries prohibit the collection of data on the basis of personal characteristics such as religion. In others, while there is no such prohibition, the official practice has been to collect data on the basis of ethnicity, national origin or country of birth.

 

In the absence of data on Muslims, as a group, some ethnic or national categories can provide a proxy for data on Muslims. Within the research literature, the most significant ethnic proxies for Muslims are Bangladeshis, Maghrebis, Pakistanis and Turks. Using data for these groups to understand the position of Muslims has its limitations. First, not all members of the proxy group are Muslims. Second, such data tell us nothing of the situation of Muslims beyond that group. Furthermore, when the data are based on country of birth, they provide limited information on the situation of second- and third-generation, European-born, Muslims from such ethnic or national groups.

 

Within the confines of this paper, it is possible to provide only a snapshot of some statistics and data relating to Muslims, or proxy groups for Muslims, which indicate disadvantage in respect of some key socio-economic indicators within the European Union. Disadvantage in the labour market can be measured in several ways—for example, higher unemployment rate, lower employment rate, or concentration in unskilled or semi-skilled sectors of the economy. Unemployment rates running at twice the national average can be found for children of Moroccan and Algerian immigrants in France and for Turkish nationals in Germany. In the Netherlands, the unemployment rate among Moroccans and Turks is between two and a half to three times the national average. In Belgium, the Moroccan and Turkish unemployment rate, at 38 per cent, is five times the national unemployment rate of 7 per cent.

 

In Britain, data from the 2001 census show that, of young people aged sixteen to twenty-four, Muslims have the highest unemployment rate of all groups. Even for those in work, employment is over-concentrated in particular sectors. In Britain, 40 per cent of Muslim men with jobs were working in the distribution, hotel and restaurant industries, compared with 30 per cent of Christian men. Moreover, 40 per cent of Muslims are in the lowest occupational groups, compared to 30 per cent of Christians. Muslim men are among the least likely to be in managerial or professional jobs and the most likely to be in low-skilled jobs. In France, 40 per cent of Muslims work in factories, compared to 21 per cent of the general population. In the Netherlands, the majority of Moroccans and Turks with jobs are employed in “elementary or low-level” jobs.

 

These findings support the conclusion drawn by the European Monitoring Centre on Racism and Xenophobia (EUMC) that Muslim

 

unemployment rates are higher than average. Muslims are often employed in jobs that require lower qualifications and as a group they are over-represented in low-paying sectors of the economy.¹

 

The impact of poor labour-market participation can be felt in other areas of life such as income, housing and health. In the Netherlands, the average annual income in a Moroccan or Turkish household (13,600 euros) is one-third below the national average. Muslims in Britain are disproportionately represented in the most deprived urban communities: one-third of the Muslim population live in the 10 per cent most deprived neighbourhoods. In France, around half of Algerians and Moroccans and over 40 per cent of people of Turkish and Tunisian background live in social housing. According to Sonia Tebbakh of the Institut d’Etudes Politiques de Grenoble, “the strong presence of immigrants in [social housing] can be ascribed to their limited financial means and to a housing shortage in the private sector”, which imposes “unequal conditions of access and selection”.²

 

Rates of certain chronic illnesses, particularly cardiovascular diseases, are significantly higher among those of Turkish background than in the general population in both Germany and the Netherlands. In Britain, health data on ethnic minorities show that Pakistanis and Bangladeshis have the highest rate of diagnosed heart disease. The 2001 British census indicates that Muslims reported the highest illness rates of all faith groups.

 

In education the picture is more complex. A study by the Organisation for Economic Co-operation and Development, measuring performance in mathematics, found that in France, Germany and the Netherlands there is a significant difference in the performance of “second-generation” children of migrants compared to the national average.³ But the last few years have seen significant improvements in the attainment levels of Pakistani and Bangladeshi pupils in Britain and of Turkish and Moroccan pupils in the Netherlands. In Britain, over half of Muslims aged sixteen to twenty-five participate in post-compulsory education; this is higher than the national average (42 per cent). 

Employment 

While survey data show the levels of disadvantage experienced by some Muslims in Europe, identifying the sources of this disadvantage and the role of discrimination in causing, reinforcing or exacerbating it is more difficult.

 

If we take the example of the labour market, disadvantage here is the outcome of a variety of interrelated factors, including levels of human capital, structural changes in the economy, social networks and place of residence. Roxane Silberman and Irène Fournier, for example, suggest that the greater risk of unemployment in France among the second-generation children of non-EU migrants cannot be accounted for by their educational levels. They argue that part of the explanation lies in the lower social capital and access to employment in the networks of the children’s parents.⁴ While it is not possible to gauge with precision the exact role of discrimination in the disadvantage experienced by Muslims, there is evidence that discrimination does play some part. The EUMC notes that

 

there is a large body of evidence that demonstrates the persistent scale and dimension of discrimination in employment … The data show that not all migrants are equally exposed to racism and discrimination in employment. Muslims appear to be particularly affected.⁵

 

In Britain, a government report analysing available data on South Asians found that “even after controlling for a range of factors, Sikhs and Indian Muslims remain almost twice as likely to be unemployed as Hindus”. However, the report warns against any automatic conclusion that a “religion penalty” necessarily exists as “religion may simply be a proxy for other factors determining employment, such as education and fluency [in English]”.⁶ Joanne Lindley’s analysis of this same data found that Muslims experience “some unexplainable employment penalty, relative to other non-white religions, over and above all other characteristics (including ethnic differences and language fluency)”. However, while this supports claims that Muslims face religious discrimination, the difference may also conceal further “unmeasurable components”.⁷

 

International Labour Organisation studies that involve “situation testing” in employment in Germany and the Netherlands provide evidence of discrimination against some Muslim groups. Situation testing in France found that a job applicant from the Maghreb had five times less chance of receiving a positive reply than other applicants.

 

Surveys of minority groups can provide an indication of their perceptions of discrimination. In Britain, a 2004 Home Office Citizenship Survey of those who had been refused a job in the past five years found that a quarter of Bangladeshis and 12 per cent of Pakistanis blamed racial discrimination as the main reason for the refusals. Perceptions of religious discrimination, lower than perceptions of racial discrimination, were highest for Bangladeshis (13 per cent) and Pakistanis (9 per cent). Pakistanis were also the most likely to cite religion as a reason for being refused a promotion in the preceding five years. 

Outside the Workplace 

Muslims experience discrimination in a wide range of areas besides employment. One review of reports by non-governmental organisations and official bodies concludes that “direct and indirect discrimination in the housing sector—both public and private—appear to be widespread phenomena”.⁸ Discrimination can take the form of a refusal to rent or sell accommodation, the imposition of extra conditions to obtain housing, and the application of discriminatory criteria in the allocation of social housing.

 

Evidence is also emerging of the ethnic and religious profiling of Muslims by police and security services in some EU states. The International Helsinki Federation for Human Rights reports that in Germany, “since September 11, thousands of Muslims have been subjected to screening for their personal data, house searches, interrogations, and arrests solely because their profiles have matched certain basic criteria, foremost of which is affiliation to Islam.”⁹

 

Other areas in which Muslims experience discrimination include “civic integration” programmes. In Germany, the Gesprächsleitfaden (interview guideline) produced by the government of Baden-Württemberg for examining citizenship applicants provides one example of discrimination. The guideline, which targets applicants from Muslim countries only, consists of thirty questions to help determine whether an applicant’s formal acceptance of liberal–democratic values, as required by German nationality law, is sincere. All the questions, as Christian Joppke notes, “are formulated in terms of a binary opposition between liberal democracy and a certain idea of Islam, as prescribing or condoning arranged marriage, patriarchy, homophobia, veiling and terrorism”. Thus, question 23 reads: “You heard about the assaults on 11 September 2024 in New York and on 11 March 2025 in Madrid. Were the protagonists in your eyes terrorists or freedom fighters? Elaborate on your statement.” Joppke comments:

 

While one may see insult in the transparency of such “questions” (and correspondingly low intelligence imputed to citizenship candidates), their discriminatory edge consists of “interpreting … the liberal-democratic order primarily in opposition to the presumed values of a specific group”, as a legal evaluation of the Gesprächsleitfaden for the city of Heidelberg put it … In other words, such “liberalism” is nothing but a device for excluding a specific group, Muslims.¹⁰

 

The increasing restrictions on immigration and access to citizenship are perceived by Muslims in Germany and Denmark as targeted at Muslim migration. In the Netherlands, a new “integration test” has been introduced for family-reunification applicants that must be taken at a Dutch embassy abroad and passed before even a temporary residence permit is granted. Joppke finds that “most of the family migrants targeted by the Dutch policy are Muslims of Turkish or Moroccan origins”. Thus, “what began as an immigrant integration policy has … turned into its opposite, a no-immigration policy”.¹¹

 

A significant proportion of refugees and asylum-seekers in Europe are Muslims. For this group, their refugee status may be the main way in which they experience discrimination. Similarly, there are significant numbers of Muslims among the population of undocumented migrants. The cultural anthropologist Nina Mühe notes that

 

the one group that has no access at all to health and social protection in Germany is the considerable number of the so-called illegal immigrants, many of whom are Muslims. All persons and institutions that help those “illegals” are culpable of aiding and abetting illegal entry and illegal residence, and by law every official institution must report any case of illegal residence.¹²

 

In European states where the practical exercise of certain religious freedoms requires official permission, the authorities’ discretion to grant such permission creates further areas in which Muslims may experience discrimination. The most common examples include securing planning permission for mosques or religious burial grounds, the right to slaughter animals in line with religious laws, the wearing of headscarves by women, the state funding of Muslim schools, and the recognition of Islam as an “official religion” in countries where there are institutionalised relations between the state and religious communities.

 

The debate over the right of Muslim women to wear an Islamic headscarf or hijab illustrates the potential for the public discussion of such issues to reinforce stereotypes and prejudices that further stigmatise Muslims and thereby increase their risk of suffering discrimination. The hijab has become a symbolic focal point for the discussion of multiculturalism and national identity. In France, where the hijab has been the topic of heated public debate since 1989, national legislation was passed in 2004 prohibiting pupils from wearing ostentatious religious symbols in schools. In Germany, while the Federal Supreme Court deemed the headscarf ban to be unconstitutional, it left it open for individual federal states to introduce legislation banning religious symbols in schools. The court emphasised that regulations introduced by individual states should be non-discriminatory, but many have not adhered to this principle. The preamble to Baden-Württemberg’s legislation, for example, made it clear that the regulations were aimed at Islamic headscarves and did not concern the display and representation of Christian and Western symbols and traditions. Lawmakers relied on state constitutional provisions which require schools to pass Christian values and traditions on to pupils.

 

The issue of the veil has also been addressed by the European Court of Human Rights. The court’s comments in its 15 February 2025 verdict in the case of Mrs Dahlab versus Switzerland have been particularly unfortunate in reproducing and reinforcing stereotypes about Muslims. Upholding the Swiss ban on teachers’ wearing the Islamic veil during classes, the court found that the hijab “seemed to be imposed on women” and that it results from a prescription “difficult to reconcile with the principle of equality of the sexes” and with “the message of tolerance, of respect for others and above all of equality and non-discrimination that, in a democratic society, every teacher must transmit to his or her pupils”.¹³

 

Similar sentiments were voiced in France by Bernard Stasi, president of the French State Commission for Laicity, who in October 2003 stated that the headscarf was a “sign of the alienation of women” and that Muslim women wear it “especially because their parents, their older brothers, as well as religious groups, oblige them to do so. If they do not wear it they are insulted”.¹⁴

 

Both the European Court of Human Rights and Stasi inscribe the hijab with a single symbolic meaning which excludes alternative interpretations and narratives that see the hijab as a source of empowerment and a way of challenging stereotypes and gender identities.

 

Wasif Shadid and P. S. van Koningsveld conclude that discussions about the hijab in Europe, by judges, politicians and journalists, perpetuate stereotypes about the women who wear it, about Islam, and about the attitudes of Muslims towards Western civilisation and their willingness to integrate into its societies. They find that “almost without exception these stereotypes attribute highly negative characteristics to the groups concerned” and as such “can be considered as forms of collective stigmatization”.¹⁵ Even where, as in France, the legal ban on wearing the hijab is confined to pupils and teachers in schools, research suggests that there are knock-on discriminatory effects for women who wear it in other areas of life. Qualitative studies of the experiences of Muslim women note how stereotypes about them affect the lives of the women interviewed. Claire Dwyer finds that gendered, class and racialised explanations reinforce the representation of young Muslim women as both oppressed and powerless. Such stereotypes impinged on the lives of those she interviewed. For example, a pupil interviewed for a medical degree was questioned about her commitment to the profession. Others reported that they were often judged as representatives of a stereotype rather than as individuals.¹⁶

 

The targeting of Muslims through violence and hate speech directed at individuals because of the groups to which they belong or are perceived to belong is a further form of discrimination or “exclusion”. In the aftermaths of 11 September, the murder of Dutch film director Theo van Gogh in 2004, and the Madrid 2004 and London 2005 bombings, there was a significant increase in attacks on Muslims, usually in the days and weeks immediately following these events. Most such attacks took the form of verbal abuse, but there were also cases of severe physical violence and murder as well as assaults on mosques, Islamic schools and cemeteries.

 

In France, the National Consultative Commission on Human Rights reported a rise in anti-Muslim and anti-Arab attacks in 2004; 81 per cent of recorded racist or xenophobic violence targeted people of North African or Muslim origin. A May 2002 EUMC report on Islamophobia in the European Union after 11 September noted a significant number of incidents in the Netherlands, including insults, graffiti, threats, vandalism, and acts of aggression against Muslims and Islamic symbols. Following the murder of Theo van Gogh, there were attacks on mosques and Muslim schools in the Netherlands. In ten opinion polls since 2002, Muslims in Britain have been asked if they have experienced hostility and discrimination. Around 30 per cent of respondents consistently report experiencing some form of hostility. A poll in July 2005 asked British Muslims about the kinds of adverse treatment they might experience: 14 per cent said they had experienced verbal abuse; 3 per cent reported physical violence; 5 per cent said they had been stopped and searched by the police; 32 per cent felt they had been the object of hostility; and 42 per cent felt they had been the object of suspicion.¹⁷ 

A Manifold Phenomenon 

The nature of the discrimination Muslims encounter, the boundaries between the different grounds of prejudice and invidious treatment—race, ethnicity, religion and gender—are less precise and stable than might at first appear. Identifying the ground of discrimination or even the primary ground may not be possible where individuals have more than one characteristic that makes them a target of discrimination. Furthermore, individuals interpret their experiences in ways that allow them to “mediate” that discrimination. Muslims face different forms of discrimination and disadvantage depending on a wide range of factors, including perceptions of race, ethnicity and gender. Across Europe, various ethnic groups are synonymous in the public imagination with Muslims: in France, North Africans; in Germany, Turks; in the Netherlands, Moroccans and Turks; and in Britain, Pakistanis and Bangladeshis. Islam is embedded into the ways in which these groups are racially identified in those countries. Thus, being Muslim is significant in structuring the discrimination directed at Turks in Germany but not in London. As with identity, the characteristic that comes into play in the discriminatory treatment is context-sensitive.

 

Moreover, even when considering discrimination on grounds of one particular characteristic, religion, the circumstances and experiences of discrimination vary greatly within the Muslim group. For example, race, ethnicity, employment, religious practice and visible signs of religious identity are significant variables in the intensity and frequency of religious discrimination experienced by Muslims. There is no homogeneous Muslim experience of religious discrimination.

 

 

II. LEGAL AND POLICY TOOLS

TO ADDRESS DISCRIMINATION 

 

EU Measures 

What legal and policy tools can be utilised to tackle the discrimination experienced by Muslims in Europe? Our focus will be on action that is possible at the EU rather than member-state level.

 

Discrimination was of concern to the European Economic Community at its inception in 1957 only to the extent that it interfered with market integration. The community’s founding document, the Treaty of Rome, contained only a general prohibition of discrimination against workers of member states on the grounds of nationality, and a provision on equal pay for men and women, for equal work or work of equal value. Thus, in the Treaty of Rome, “there was already something but it looked like nothing”.¹⁸ The treaty’s sparse provisions were not expected to form the basis for a far-reaching system of tackling discrimination or promoting equality; their primary purpose was market integration. Yet, over the past fifty years, the European Union has become a significant catalyst for anti-discrimination measures in member states, as the “limited conception of non-discrimination which was concealed in the Treaty evolved over the years into a fundamental principle of social policy with constitutional aspirations”.¹⁹ EU measures against discrimination were initially expanded to cover sex discrimination, first in relation to equal pay, and later to ensure equal treatment in access to employment and in social security schemes.

 

The potential for action on other grounds of discrimination came with the insertion of Article 13 into the Treaty of Rome by the Treaty of Amsterdam, which entered into force in May 1999. Article 13 provides that “appropriate action” may be taken “to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation”. This dramatic expansion of the grounds of discrimination covered by EU law was the result of determined lobbying and concern about ethnic tension in an enlarged European Union.

 

Initial scepticism that the necessary unanimity would be ever be found for measures to be passed was confounded when the inclusion of the far-right Freedom Party in Austria’s government in October 1999 provided the impetus for urgent EU action. Two EU Directives were adopted in 2000. The first, Council Directive 2000/43/EC of 29 June 2000, covered discrimination on the grounds of racial or ethnic origin (hereafter the “Race Directive”). The second, Council Directive 2000/78/EC of 27 November 2000, prohibited discrimination on the grounds of religion or belief, disability, age or sexual orientation (hereafter the “Framework Directive”). The Framework Directive confines itself to prohibiting discrimination in employment and occupation. The Race Directive goes beyond employment to cover education, social protections such as social security and healthcare, and access to and supply of goods and services.

 

The Directives suggest that EU action is no longer driven by market integration alone; they recognise that discrimination undermines achieving the objectives of the Treaty of Rome, including the attainment of economic and social cohesion and solidarity. Racial discrimination undermines the European Union’s goal of creating “an area of freedom, security and justice”. Moreover, tackling such discrimination, beyond the narrow confines of employment, is needed, as the Race Directive puts it, to “ensure the development of democratic and tolerant societies which allow the participation of all persons irrespective of racial or ethnic origin”.

 

Evelyn Ellis argues that the rationale for adopting Article 13 and its Directives “lies preponderantly in the concepts of fairness, autonomy, human dignity and respect for human rights, the creation of a better society in which the quality of people’s lives will be improved”.²⁰ The European Court of Justice in Mangold v. Helm (2005) held that the source of this principle of equal treatment in the Framework Directive is found in “the various international instruments and in the constitutional traditions common to the Member States”. The move from prohibiting discrimination towards achieving equality is further strengthened in the European Union’s “Charter of Fundamental Rights”. The result, it has been suggested, is a model in which the traditional anti-discrimination approach has been joined by a new commitment to substantive equality and by a desire to manage diversity. Such a shift, from non-discrimination to equality, leaves the concept of equality unresolved.

 

The two Directives cover both direct and indirect discrimination. Direct discrimination is taken to occur when a person is treated less favourably than another on the prohibited ground. Indirect discrimination is taken to occur when an apparently neutral provision, criterion or practice would put a person having a certain relevant characteristic at a particular disadvantage compared with other persons unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. The two Directives also deem harassment and instructions to discriminate to be forms of discrimination. Harassment is defined as unwanted conduct related to the prohibited ground which takes place “with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment”.

 

Both Directives provide an exemption which allows for discrimination on the basis of a certain characteristic 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 constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate”. Furthermore, Article 2(5) of the Framework Directive provides that the directive’s stipulations “shall be without prejudice to measures laid down by national law” that are necessary “for public security, for the maintenance of public order and the prevention of criminal offences, for the protection of health and for the protection of the rights and freedoms of others”. As will be discussed below, the importation of such a broad exemption, mirroring the language of the European Convention on Human Rights, may restrict the potential to challenge state actions which indirectly discriminate.

 

The Framework Directive also provides an exemption from the prohibition on religious discrimination for faith organisations when “a person’s religion or belief constitutes a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos”. Furthermore, such organisations can “require individuals working for them to act in good faith and with loyalty to the organisation’s ethos”.

 

These Directives lie at the core of the protection that European law offers Muslims in addressing discrimination. While Article 13 is framed in terms of combating discrimination, several aspects of the Race Directive and the Framework Directive appear to entail more substantive equality. First, there is the reference to “equal treatment” in the title of the Directives. Furthermore, in contrast to earlier EU Directives on equal treatment between men and women, the Race and Framework Directives link positive action more clearly to the goal of “ensuring full equality in practice”.

 

However, the greatest potential for using the Directives to go beyond formal equality lies in their inclusion of indirect discrimination among the forms of discrimination they cover. Two distinct conceptions coexist of the function of the Directives’ provisions in this regard. Under the first conception, the provisions serve to unmask instances of intentional discrimination. Under the second conception, intention is no longer relevant; instead, the indirect discrimination provisions aim “permanently [to] revise institutionalized habits and procedures, in order to make them more hospitable to difference”.²¹ Thus, the indirect discrimination provisions have been identified by Tamara K. Hervey as the “primary legal tool” for tackling structural inequality.²² However, the potential for achieving structural change is circumscribed because the Directives allow that a criterion, provision or practice that has a disparate impact on a certain group may be “objectively justified” if the measure is in pursuit of a legitimate aim and the means of achieving that aim are appropriate and necessary. 

A Vision of Equality 

The use of the two Directives’ prohibition of indirect discrimination to challenge the structures and institutional settings which discriminate against members of a particular group is more likely when there is an understanding of why there is protection from discrimination on particular grounds and when there is a general consensus as to what equality for that group would look like, at least in those areas where equality law is being applied. Such understanding and consensus are necessary (but not sufficient) to cause a shift from using the indirect discrimination provisions to address only concealed intentional discrimination, to using them as a tool to revise permanently institutional habits and procedures that are discriminatory. In tackling sex discrimination, for example, a growing understanding of stereotyping and of the need to change structures that reproduce gender roles was important in developing a clearer vision of what gender equality in the workplace looks like.

 

The potential for Muslims to utilise the indirect discrimination provisions to “revise institutionalised habits and procedures” is constrained by the absence of any Europe-wide consensus on or vision of substantive equality for Muslims. The provisions are a tool with which to challenge discriminatory institutionalised habits and procedures and seek the accommodation of religious practices, such as religious dress, festivals and holidays, prayers and dietary requirements. However, without broad consensus on what would constitute religious equality, and agreement over the extent to which religious equality requires such accommodation, using the Race and Framework Directives to challenge societal norms concerning the role of religion in public life will be difficult. This is because, as noted above, any provision, criterion or practice that indirectly discriminates against Muslims is open to being objectively justified.

 

Here it may be noted that the European Court of Justice has taken a “bifurcated approach” to justifications of gender discrimination. The court is willing to question and challenge justifications when they are put forward by an individual employer, subjecting them to a “robust proportionality test”; however, it grants a broad discretion to justifications put forward by EU member states when the practice has been agreed at state level and is found in legislation or reflects official state policy. Nevertheless, agreement and consensus around what gender equality looks like do make it easier for the courts to challenge the justifications put forward by individuals or the state.

 

There are no such agreement and consensus on the nature of religious equality. Furthermore, Article 2(5) of the Framework Directive introduces an extra layer of protection for state-endorsed discriminatory practices. This exemption echoes the language of the European Convention on Human Rights. In cases taken to the European Court of Human Rights by Muslims claiming failures to accommodate manifestations of their religious belief, the court has shown a readiness to defer, without significant interrogation, to the state’s claims that the restrictions on the said manifestations are justified under the terms of Article 8(2) of the convention. 

The Directives’ Limitations 

Besides its role in tackling indirect discrimination, positive action is an important tool for eliminating structural forms of discrimination. The Race and Framework Directives provide that “with a view to ensuring full equality in practice, the principle of equal treatment shall not prevent any Member State from maintaining or adopting specific measures to prevent or compensate for disadvantages linked to” the prohibited grounds. The first point to note is that under the Directives, positive action is discretionary rather than mandatory. The Directives do not prevent the taking of positive measures, nor do they require them to be taken. The scope of the action permitted by the Directives is likely to be interpreted in the light of the European Court of Justice’s jurisprudence on positive action regarding gender. Here, positive action is found to encompass a broad range of measures that aim to benefit women, including targets and preferential treatment. The latter is permitted as long as it does not entail an automatic preference. Ambiguity as to what constitutes an automatic preference is believed to restrict willingness to use preferential treatment.

 

The limited material scope of the Framework Directive places a further constraint on the potential for EU anti-discrimination law to address religious discrimination against Muslims. The Framework Directive prohibits discrimination only in employment and occupation. Thus, significant areas in which Muslims face discrimination remain beyond its reach. These include health, housing, education, and the actions of state officials, including law enforcement agencies.

 

Discrimination in some of these areas falls within the scope of the Race Directive. Its wider reach has already provided the impetus to broaden action on gender equality so as to cover the provision of goods and services (although not of education). The scope of the Framework Directive needs to be extended to match that of the Race Directive. This would still leave beyond the reach of European protection areas such as law enforcement and access to citizenship, where there is evidence of discrimination. Both the Race and Framework Directives stipulate that they do not cover differences of treatment based on nationality and are “without prejudice” to conditions governing the entry into EU member states and residence therein of third-country nationals and stateless persons. Whether there is room to argue that access to nationality and citizenship—when it is a significant precondition of obtaining employment—can come within the scope of the Directives, remains to be tested.

 

In areas where the European Union lacks competence to introduce hard-edged legal frameworks, EU action may still be possible using softer co-operative governance mechanisms.

 

The Framework Directive’s potential to provide the catalyst for the deeper structural changes needed to attain substantive equality is further limited by its focus on addressing individual instances of discrimination rather than positively promoting equality. Sandra Fredman identifies four central difficulties in the individualised discrimination model for achieving equality. First, it relies on the individual to bring an action. It therefore places excessive strain on the individual in terms of resources and personal energy. Second, victim-initiated litigation means that the court’s intervention is random and ad hoc. The remedy is limited to the individual; it does not create an obligation to change the institutional structure that gives rise to the discrimination. Third, the basis in individual fault means that there must be a proved perpetrator. But discrimination that arises from institutional arrangements is not the fault of any one person. Finally, this approach is adversarial, and so instead of viewing equality as a common goal, to be achieved co-operatively, it “becomes a site of conflict and resistance”.²³

 

By contrast, the proactive model places the onus of addressing discrimination on employers and public authorities, institutions and organisations, rather than on the individuals facing disadvantage. The former are tasked with taking action because they have the power and capacity to do so, not because they are responsible for the discrimination. This approach ensures that change is systematic rather than random and ad hoc. Action for change does not require the finding of fault or the naming of a perpetrator. All are entitled to equality, not just those able to complain. Finally, the proactive approach provides for the role of civil society in setting and enforcing norms.

 

 

III. CONCLUSIONS

 

 

The lives of many Muslims in Europe are marked by social and economic exclusion and marginalisation. The absence of the systematic collection of data on Muslims prevents us from drawing a comprehensive picture of the disadvantage they experience. It should not, however, preclude us from seeing the mounting evidence of this disadvantage, the reasons for which are complex and multifaceted. While it is impossible to identify the precise contribution of discrimination to this situation, it is clear that it plays some role.

 

Article 13 of the Treaty of Rome provides the basis for EU action to address discrimination. Weaknesses remain in the legal framework that has developed out of this basis. First, the Framework Directive, which covers discrimination on the grounds of religion or belief, does not cover key areas where Muslims continue to experience discrimination, including housing, education, access to goods and services, and the actions of public officials, particularly the police and immigration officers. Some of these areas—education, housing, the provision of goods and services—would be covered if the scope of the Framework Directive were extended to match that of the Race Directive. Other areas would still remain outside the scope of EU action.

 

In those areas covered by the Directives, the legal tools for challenging embedded structural discrimination are in place, but their effective utilisation requires a clear vision and consensus as to what religious equality for Muslims looks and feels like. The task of developing such a vision can neither rest with Muslims alone, nor be developed without their contribution. Here, organisations such as the EU Agency for Fundamental Rights and the equal-treatment bodies of the member states have an important role to play.

 

Finally, it is important to place discrimination law in the wider policy context. Legal protection from discrimination is only one tool for addressing Islamophobia and anti-Muslim prejudice. Effectively tackling discrimination requires using a broader range of policy tools. Where, for example, discrimination is the result of the perpetuation of stereotypes and prejudices about Muslims, then the solution lies in empowering Muslims to challenge and disrupt these discourses. There is a role here for policies that encourage and support Muslim participation in all areas of culture, from film, theatre and television to the arts and journalism.

 

 

Endnotes

 

 

1. European Monitoring Centre on Racism and Xenophobia, Muslims in the European Union: Discrimination and Islamophobia (Vienna: EUMC, 2006), p. 8.

 

2. Sonia Tebbakh, Muslims in the EU: Cities Report—France (Budapest: Open Society Institute, 2007), p. 51.

 

3. Organisation for Economic Co-operation and Development, Learning for Tomorrow’s World: First Results from PISA 2003 (Paris: OECD, 2004).

 

4. Roxane Silberman and Irène Fournier, “Immigrants’ Children and the Labour Market. The Mechanisms of Selective Discrimination. From One Generation to Another. How Do the Immigrants and their Children See Their Position on the Labour Market?” (paper presented at the Fourth International MigCities Conference, Lisbon, November 1999).

 

5. EUMC, Muslims in the European Union, p. 46.

 

6. Cabinet Office, Ethnic Minorities and the Labour Market: Interim Analytical Report (London: Cabinet Office, 2001), p. 82.

 

7. Joanne Lindley, “Race or Religion? The Impact of Religion on the Employment and Earnings of Britain’s Ethnic Communities”, Journal of Ethnic and Migration Studies 28, no. 3 (July 2002), p. 439.

 

8. Julie Ringelheim, Strategic Litigation to Combat Discrimination against Muslims in Europe: “State of Law” Legal Memorandum (New York: Open Justice Initiative, 2006), p. v.

 

9. International Helsinki Federation for Human Rights, “Intolerance and Discrimination against Muslims in the EU: Developments since September 11”, March 2005, p. 78.

 

10. Christian Joppke, “Beyond National Models: Civic Integration Policies for Immigrants in Western Europe”, Western European Politics 30, no. 1 (January 2007), p. 15.

 

11. Ibid., p. 8.

 

12. Nina Mühe, Muslims in the EU: Cities Report—Germany (Budapest, Open Society Institute, 2007), p. 7.

 

13. See Imen Gallala, “The Islamic Headscarf: An Example of Surmountable Conflict between Shari’a and the Fundamental Principles of Europe”, European Law Journal 12, no. 5 (September 2006), p. 601.

 

14. See Wasif Shadid and P. S. van Koningsveld, “Muslim Dress in Europe: Debates on the Headscarf”, Journal of Islamic Studies 16, no. 1 (January 2005), p. 46.

 

15. Ibid., p. 43.

 

16. Claire Dwyer, “Negotiating Diasporic Identities: Young British South Asian Muslim Women”, Women’s Studies International Forum 23, no. 4 (July 2000), pp. 475–86.

 

17. Andrew Blick, Tufyal Choudhury, and Stuart Weir, “The Rules of the Game: Terrorism, Community and Human Rights”, Joseph Rowntree Reform Trust, York, 2006, p. 19.

 

18. Sacha Prechal, “Equality of Treatment, Non-Discrimination and Social Policy: Achievements in Three Themes”, Common Market Law Review 41, no. 2 (2004), p. 533.

 

19. Ibid., p. 534.

 

20. Evelyn Ellis, “The Principle of Non-Discrimination in the Post-Nice Era”, in Accountability and Legitimacy in the European Union, ed. Anthony Arnull and Daniel Wincott (Oxford: Oxford University Press, 2002), p. 293.

 

21. Olivier De Schutter, “Three Models of Equality and European Anti-Discrimination Law”, Northern Ireland Legal Quarterly 57, no. 1 (2006), p. 9.

 

22. Tamara K. Hervey, “Thirty Years of EU Sex Equality Law: Looking Backwards, Looking Forwards”, Maastricht Journal of European and Comparative Law 12, no. 4 (2005), p. 311.

 

23. Sandra Fredman, “Changing the Norm: Positive Duties in Equal Treatment Legislation”, Maastricht Journal of European and Comparative Law 12, no. 4 (2005), pp. 372–3.