Belgium: Summer update of the discrimination legislation: multiple discrimination, new concepts, modern terminology and more flexibility for sanctions and enforcement
After the modifications to the discrimination legislation earlier this year, a second act has recently been published. The Act of 28 June 2023, published on 20 July 2023, changes the three Belgian discrimination acts (the general act, the gender act, and the racism act) regarding several topics with the objective to reflect the principles developed by the case law (but also by social evolutions) in the law and to improve the enforcement of the discrimination protection.
1. Multiple discrimination
The case law (following the lead of the Court of Justice of the European Union) already accepted the existence of “multiple discrimination” in cases where persons are confronted with discrimination based on more than one protected criterion. The Act of 28 June 2023 makes a distinction between a cumulative discrimination and an intersectional discrimination.
Cumulative discrimination is a situation that arises when a person is discriminated against as a result of a distinction based on multiple protected criteria that add up, but remain separable. An example given by the preparatory works is the case of individual discriminated against as homosexual, not only because of his sexual orientation but also because of his health condition, because certain diseases are associated with homosexual men. This discrimination is based on two distinctive criteria which can remain distinguished from each other (also, non-homosexuals with HIV would be discriminated against).
This is different for intersectional discrimination, where the multiple protected criteria involved in the discrimination become inseparable. The preparatory works offer the example of a luxury hotel that would refuse access to an Asian woman because they assumed that she would offer sexual services in the hotel. She would be discriminated against based on her gender and on her nationality or ethnicity. However, a non-Asian woman or an Asian man would not have been discriminated against; therefore, the two protected criteria become inseparable.
These concepts were already used in the case law, but the legislation now offers the correct terminology for legal practitioners to consider. For the rest, the distinction between cumulative or intersectional discrimination does not seem to have direct consequences. However, multiple discrimination in general does have two consequences:
- This means that the strictest justification system has to be applied (some protected criteria are more difficult to justify than others).
- It can also have consequences for the compensation. The preparatory works reiterate that the judge has the discretionary power to decide whether he can award a double compensation to the victim, but also seem to incite judges to take the double discrimination into consideration. According to the current (limited) case law, a judge would normally only be able to award a double compensation if there is clearly a separate damage caused by multiple discriminations (based on the different criteria). It is our opinion that rule remains valid and therefore a multiple discrimination will not automatically lead to a multiple compensation.
2. New concepts: discrimination by association and discrimination based on a presumed criterion
The Act of 28 June 2023 also introduces some new concepts (that, again, were already used by European and Belgian case law). First, discrimination by association means that someone is discriminated against because of someone else’s protected characteristics. An example is an employer who refused to hire a man because he is the father of a disabled child, and the employer is convinced that due to the care of the disabled child, the father will not be able to fulfill his duties for the company. The father himself is not disabled, but he is discriminated against because of the disability of his child.
Second, discrimination based on a presumed criterion means that someone is discriminated against based on a protected criterion while the victim actually does not belong to the protected group or does not have the protected characteristic. An example is the dismissal of a straight man because he participated in a gay pride event in support of the LGBTQ community.
3. Update of terminology for protected criteria
The Act of 28 June 2023 also changes the terminology of three protected criteria as they are impacted by social evolutions or because they are currently causing confusion:
- “Gender change” becomes “medical or social transition,” as not all transitions are of a medical nature (e.g. involving an operation), and the concept of gender has become more fluid.
- “Social descendance” becomes “social descendance or situation” as descendance alone was seen as too limited, solely referring to the family or parental situation, while someone’s social situation can also be disconnected from one’s family or ancestors.
- The criterion of “Sexual nature” in Dutch (the concept is difficult to translate in English, but in Dutch it is called “Seksuele geaardheid”) becomes “sexual orientation” (“seksuele oriëntatie” in Dutch). This was already the case in the French version (“orientation sexuelle”), so now the two versions are aligned.
4. Sanctions and enforcement
The Act also expressly states that, in addition to the power to impose compensation for victims, the court has the power to order the offender to take corrective measures aimed not only at stopping the discrimination observed but also at preventing him or her from committing discrimination again in the future. The current case law was sometimes hesitant to impose such “positive actions” directed towards the future and not solely towards the individual situation at hand.
In addition, the Act removes the condition according to which the publication or dissemination of the cessation order can be imposed only if the publication can contribute to the cessation of the challenged discriminative acts or their effects. The judge adjudicating on the cessation order retains discretionary power. The judge must assess whether and in what manner a publication is appropriate.
Finally, the lump-sum damages for victims of €650 and €1,300 will be replaced by €1,950 and €3,900, respectively, and will be indexed annually from 1 January 2024, taking into account the evolution of the consumer price index for the month of November of each previous year. However, in situations of discrimination related to labour relations, the damages of three- or six-months’ remuneration will continue to count, so this modification holds little importance to employers and employees. Nonetheless, it could be interesting for, for example, discriminated service providers.
- A distinction based on multiple protected criteria can be more difficult to justify and can lead to multiple compensations (in case of discrimination);
- The concepts and terminology of the discrimination legislation received an update.
- Courts are encouraged by the new rules to impose corrective measures to prevent future discriminations and it will be easier to order the publication of the judgment.