UCLA Journal of Islamic and Near Eastern Law

[no abstract]

Although Title VII of the Civil Rights Act nominally affirmed employees’ right to wear hijab in the workplace, the courts have taken an increasingly narrow view of the term “religion” and failed to uphold the right to wear hijab in both private and public sector settings on several occasions. This is because Title VII and its attendant protections are grounded in a framework that presumes Christianity as normative, and religiously mandated accoutrements as communicative in function. The manner in which harassment or discriminatory behavior takes place, however, often occurs outside of existing frameworks for employee protection, leaving employees with little opportunity for recourse. This paper will use a mix of critical race theory and gender studies scholarship to provide an overview and analysis of recent decisions regarding protections for wearing hijab in the workplace. It will also discuss how protections on religious freedoms protect the status quo rather than the rights of religio-cultural minorities.

To the extent that legal scholars have addressed the post-authoritarian transitions underway in the Middle East, the scope of their work has been primarily confined to the formal infrastructure of state-manufactured law. Attention has focused on the activities of high courts, parliaments, and the administrative apparatus of official justice systems, while largely neglecting to acknowledge the importance of non-state institutions and systems of normative rules that operate in the shadow of modern bureaucratic governments. The concept of legal pluralism, defined as the coexistence of multiple legal or normative orders within a common geographical area, has been applied extensively in European, South American, and sub-Saharan African contexts, but is underutilized in analysis of revolutionary and transitional change in the Middle East. Nowhere is the presence of legal pluralism more apparent than in Egypt’s geographically remote Sinai Peninsula, where non-state Islamic courts that emerged in the post-revolutionary security vacuum in 2011 claim to have absorbed 75 percent of the caseload once handled by Egypt’s official justice system and aspire to achieve full autonomy from the state. This paper, based on field research conducted in the governorate of North Sinai, argues that the rapid institutionalization of non-state shari‘a courts since the 2011 uprising can be explained in part by two historical trends: (1) the Islamizing effects of state-sponsored development and labor migration policies on Bedouin society in North Sinai; and (2) growing disillusionment with state and tribal judiciaries, which are often viewed as complicit in the disenfranchisement of the Bedouin and expropriation of their lands.