The Belgian Constitution guarantees the equality of Belgian citizens and the equality between men and women (art. 10). It also guarantees the exercise of the rights and freedoms for all Belgian citizens without any discrimination. This also covers the rights and freedoms of the ideological and philosophical minorities (art. 11). The framework of anti-discrimination legislation is mainly composed by three Acts:
- general anti-discrimination Act of 10 May 2007 (“the General Act”);
- Act of 10 May 2007 on discrimination between men and women (“the Gender Act”);
- Act of 30 July 1981 (“the Racism Act”) on punishing certain actions characterised by racist or xenophobic motives.
The anti-discrimination legislation is not applicable in cases qualified as harassment in the workplace. In such situations, the legislation on well-being at work is applicable. Therefore, in a case where the discrimination also constitutes harassment, the victim may choose the grounds on which he/she wants to introduce the procedure. If it is based on the legislation on well-being at work, the anti-discrimination legislation will not apply. The following principles are identical in the three anti-discrimination acts:
- a prohibition on every form of discrimination, direct or indirect, on the basis of a number of grounds or criteria, called ‘protected criteria’. Depending on the level of sensitivity of the criterion, it will be less or more difficult to justify a distinction on the basis of the concerned criterion. Indirect discrimination occurs when a seemingly neutral term or criterion appears to be especially disadvantageous to certain people characterised by a given protected criterion in comparison to other people.
- there is a difference between the concept of ‘discrimination’, which is always illegal, and the concept of ‘distinction’, which can be justified and permitted if there is a legitimate ground for the justification. A distinction, which is not justified by a legitimate ground of justification, constitutes discrimination and is therefore prohibited.
- compensation for damages in case of discrimination is either a lump sum amount equal to 3 to 6 times a monthly wage, depending on the circumstances, or the actual amount of the damage suffered. The different acts also include penal sanctions.
- a protection against dismissal and any other detrimental measure related to the filing of a motivated complaint for discrimination. This protection also includes compensation for damages equal to a lump sum amount of 6 times a monthly wage or compensation for the actual damages suffered.
Protections Against Harassment
The protected criteria are the following:
- Sensitive Criteria: age, sexual orientation, religious and philosophical conviction and handicap.
- General Criteria: marital status, birth, wealth, political conviction, syndical conviction, language, current or future health condition, physical or genetic characteristics and social background.
Gender Act: sex, including pregnancy, giving birth, maternity, breastfeeding, fatherhood, adoption, medically assisted reproduction (IVF), medical or social transition and gender identity, gender expression and gender characteristics.
Racism Act: nationality, a so-called race, colour of skin, and national or ethnic origin.
Besides the explicitly protected criteria, a victim of discrimination can also revert to the common law liability rules. In this hypothesis, a victim must prove the existence of the three constitutive elements of this liability: (i) a fault, (ii) damage and (iii) a causal link between fault and damage. The victim cannot benefit from compensation provided for in the anti-discrimination legislation at the same time. It is important to note the existence of CBA no. 95 on equal treatment, which also enlists some protected grounds, including the “past health record” (as opposed to the “future health condition” in the General Act). Unlike the three anti-discrimination acts, CBA no. 95 is not provided with a specific procedure to claim against discrimination and will therefore often only be used as an additional tool.
Protections Against Harassment
In a case where the discrimination also constitutes harassment, the victim may choose the grounds on which he/she wants to introduce the procedure. The option is to either choose the legislation on well-being at work or the anti-discrimination legislation. In any case the protection against retaliation as laid down in the discrimination acts will be applicable. When opting for anti-discrimination legislation, the following has to be kept in mind:
A distinction, which is based on a legitimate ground of justification, is not discrimination. There are more or less strict grounds of justification, which can be summarised as follows:
- General criteria in the General Act: (i) legitimate purpose and (ii) the means to reach this purpose are appropriate and necessary.
- Sensitive criteria in the General Act and criteria in the Gender Act and Racism Act: the criterion must be an essential and defining requirement for the job.
- All criteria, except handicap: (i) legitimate purpose and (ii) the means to reach this goal are appropriate and necessary.
- Handicap: proof that no reasonable modifications can be implemented.
A distinction, which should be regarded as discrimination, pursuant to the conditions set out above, could nevertheless be regarded as lawful if it is justified by one of the motives below:
For direct or indirect distinction, regarding all the criteria, except age and religious or philosophical conviction:
- Measures of affirmative action, provided that certain conditions are met (for an extensive overview of the rules in this respect, see below).
- A distinction dictated by law which is in conformity with the Constitution, the law of the European Union and international law.
Specific Grounds (for direct distinction)
- Age: (i) legitimate purpose of the policy in the field of employment, labour market or any other comparable legitimate purpose; and (ii) the means to achieve that purpose are appropriate and necessary.
Religious or philosophical conviction: the nature of the activities or the context in which they are being performed constitute an essential, legitimate and justifiable professional requirement, given the nature of the organisation (applicable for organisations founded on the basis of a religious or philosophical conviction).
Employer’s Obligation to Provide Reasonable Accommodations
According to Belgian legislation, employers are obliged to provide all reasonable accommodations that would allow a person with a disability to have access to a job, unless such measures would entail an unreasonable burden for the employer. Since the Belgian antidiscrimination legislation is predominantly a transposition of EU legislation, the case law of the ECJ is crucial for the determination of which accommodations can be deemed reasonable or not.
Any provisions which are inconsistent with the anti-discrimination acts or which stipulate that a contracting party renounces any rights granted by these acts are null and void. Victims of discrimination and witnesses who testified are protected against detrimental measures taken by the employer. The employee (victim of discrimination) has a choice between compensation on a lump sum basis and compensation of the actual damage suffered. In the latter case, the employee has to prove the amount of the damage suffered. The compensation on a flat rate basis is the following:
- 6 months of gross wages in all cases, except in the situations described below;
- 3 months of gross wages if it is proven that the disputed disadvantageous treatment would also have been carried through on non-discriminatory grounds;
- 1,950.00 EUR (figure for 2023) if the material damage can be redressed by application of the general nullity sanction;
- 3,900.00 EUR (figure for 2023) if the material damage can be redressed by application of the general nullity sanction, but (i) there is no proof that the disputed disadvantageous treatment would also have been carried through on non-discriminatory grounds or (ii) other circumstances justify a higher sum, such as the particular gravity of the moral damage suffered.
When a person presents facts before the courts, which could lead to the suspicion of discrimination, it is up to the accused to prove that there is no discrimination. Other than the above-mentioned compensations for damages, victims of discrimination can request the order of cessation of the discriminatory actions in the frame of a summary proceeding before the Labour Court.
In 2018, the legislature made it possible for the social inspection to use the investigation method of mystery shopping to combat discrimination. In practice, this means that social inspectors can pretend to be applicants with certain specific characteristics (e.g., pregnant women or persons with foreign origins) in order to see if the employers would refuse their applications on grounds protected by the discrimination legislation. Certain conditions apply. There must be a complaint or notification or objective indications of a discrimination; the inspectors should ask for the agreement of a public prosecutor (which will also control the actions ex post); and the actions may not constitute provocation. In practice, the social inspection rarely makes use of this method.
An affirmative action is subject to the following conditions:
- the existence of a manifest inequality within the sector of industry or the company. The evidence for this inequality can be delivered by any means.
- the definition of the objective and the concrete elaboration of the positive action:
- must aim to eliminate inequality by achieving equal opportunities
- be clearly defined and aimed at eliminating or reducing the problems underlying inequality
- the expected duration:
- the positive action measure must be temporary
- it should be withdrawn when the objective pursued has been achieved
- at the latest after a period of 3 years
- proportionality: the measures must be appropriate and necessary in relation to the objective pursued
- the guarantee that the positive action measure does not unnecessarily restrict the rights of others.
The Royal Decree of 11 February 2019 lays down the procedure which has to be followed for installing an affirmative action through a collective bargaining agreement or an accession instrument. In any case, there should be an information and consultation procedure with the workers or with the workers’ representatives. This instrument has not yet proved to be popular in practice. However, several other measures constituting affirmative actions are set out in acts and regulations in order to address specific discrimination towards women, disabled people, young employees and homosexuals.