Veiled Bias: The Complex Reality of Hijab in the American Workplace

By: Claire Herman

Disclaimer: The views expressed in this post are those of the author, and do not necessarily reflect views of the Journal, the William H. Bowen School of Law, or UA Little Rock.

The hijab is a headscarf worn by many Muslim women as a mark of modesty in character and appearance, faith, and identity, along with being a deeply personal and religious preference. Aliah Abdo, The Legal Status of Hijab in the United States: A Look at the Sociopolitical Influences on the Legal Right to Wear the Muslim Headscarf, 5 Hastings Race & Poverty L.J. 441, 449 (2008), https://repository.uclawsf.edu/hastings_race_poverty_law_journal/vol5/iss2/6/.
Though some political regimes attempt to enforce hijab on women, its compulsory enforcement or removal is incompatible with the tenets of Islam. Most Muslim women who wear hijab do so of their own volition. Id. at 448. The intent of hijab is to convey that the wearer is a Muslim who values herself and expects to be treated with respect and turns the attention from her physical appearances to her intellect, personality, and character traits. Id. at 449.

In Western culture, hijab is often weaponized against its wearers. What should be seen as a symbol of honor, identity, freedom, and respect can quickly become a symbol of oppression, leading to the mistreatment of hijabi women. Id. at 446-447.This holds true in the United States, where hijab is often misconstrued, reinforcing the misconception that Muslim women need liberation. This harmful misconception has been exacerbated post 9/11. Id. at 441.

Today, hijabi women face discrimination in many forms. One notable area is in the workforce. Discrimination at work highlights a problematic gap between U.S. anti-discrimination laws and the unfair treatment of hijabi women in the workplace.

The First Amendment of the U.S. Constitution contains two religious clauses: the Establishment Clause and the Free Exercise Clause. U.S. Const. amend. I. The Establishment Clause prohibits governments from setting up an official religion or favoring a certain religious group; the Free Exercise Clause guarantees the right of a person to practice their religion without interference from government so long as it does not violate “public morals” or a “compelling” governmental interest.” First Amendment and Religion, U.S. Cts. These two clauses guarantee religious freedom and protect religious beliefs and practices, such as wearing hijab, from governmental interference. While the First Amendment initially applied only to the federal government, the Fourteenth Amendment made it applicable to the states through the Due Process Clause. Abdo, supra at 451.

The Religious Freedom Restoration Act (RFRA) further protects women by preventing federal entities from restricting the use of hijab unless it is the “least restrictive means” of achieving a “compelling governmental interest.” Discrimination Against Muslim Women – Fact Sheet, American Civil Liberties Union, May 29, 2008, https://www.aclu.org/documents/discrimination-against-muslim-women-fact-sheet. While the RFRA does not apply to states, many states have passed similar legislations or interpreted their state constitutions to afford equivalent enhanced protections. Id. Likewise, the Religious Land Use and Institutionalized Persons Act (RLUIPA) forbids federal funding recipients (e.g. state prisons) from banning hijab unless they can show that their action is the “least restrictive means” to attain a “compelling governmental interest.” Id.

Title VII of the Civil Rights Act of 1964 prevents employers with fifteen or more employees from discrimination based on race, color, religion, sex, or national origin. Religious Garb and Grooming in the Workplace: Rights and Responsibilities, U.S. Equal Employment Opportunity Commission, Mar. 6, 2024, https://www.eeoc.gov/laws/guidance/religious-garb-and-grooming-workplace-rights-and-responsibilities. Title VII also forbids retaliation for reporting discrimination. Id. It also prohibits discrimination based on religion including disparate treatment, refusal of reasonable accommodations, workplace segregation, and harassment in the workplace. Id. In 2015, the U.S. Supreme Court held in EEOC v. Abercrombie & Fitch Stores, in an 8-1 decision, that the retailer’s failure to accommodate seventeen-year-old Samantha Elauf, who wore a hijab, violated Title VII of the Civil Rights Act. Emily Pecot, Muslim women Face Discrimination for Wearing Hijab, https://njsbf.org/2023/10/13/muslim-women-face-discrimination-for-wearing-hijab/.

Despite the legal system created to protect religious freedom and avert discrimination, many women who wear hijab encounter biases, exclusions, and challenges that undermine the effectiveness of the law and leave these women facing discrimination due to their religious expression.

Employment issues affect hijabi women at all stages of employment across various fields, including law enforcement, private security, retail, and office settings. Abdo, supra at 475. Muslim women who wear hijab frequently face wage disparities, consistently earning less than non-Muslim women. Eman Abdelhadi, The Hijab and Muslim women’s employment in the United States, Research in Social Stratification and Mobility, 61, 26-37, Feb. 9, 2019, https://www.sciencedirect.com/science/article/abs/pii/S0276562418301239. Additionally, Muslim women who wear a hijab face different treatment than Muslim women who do not. A study indicated that hijabi women are 40% less likely to be hired and retained compared to non-hijabi women. Pecot, supra.

In another study, applications from hijabi and non-hijabi women with identical credentials showed biases: hijabi women faced longer processing times for “excellent” applications and were quickly rejected for weaker applications. Bethool Zehra Haider, Asking the Muslim Woman Question: Understanding the Social and Legal Construction of Muslim Women, 38 Berkeley J. Gender L. & Just. 81, 92 (2023). Similarly hijabi women with poorer quality applications were rejected much faster than their counterparts. Id. Studies also show that wearing a hijab increases rejection rates for professional positions at all levels of academic achievement, highlighting hiring biases. Id. at 92.

Research shows that employment rates for non-hijabi Muslim women are almost indistinguishable from those of non-Muslim women. Abdelhadi, supra. This underscores that the issue is not with Muslim women in general but rather with Muslim women who practice hijab. The disparity in employment opportunities and advancements for women who wear hijab compared to their non-hijabi and non-Muslim counterparts illuminates an issue of religious freedom and expression while highlighting a systematic problem driven by antiquated biases

There is a place for Muslim women who choose to wear hijab within our society, and it’s time we acknowledge it.