Newsflash
Discrimination

The Act of 10 May 2007 aimed at combating certain forms of discrimination sets out a prohibition to discriminate on the basis of “current or future state of health”. On 7 July 2022, a bill was passed which broadens this criterion. The notion of “current or future state of health” is replaced by “state of health”, so that a past state of health is also protected by the Anti-Discrimination Act.

Bill amending the Act of 10 May 2007 aimed at combating certain forms of discrimination based on one’s state of health

Before this recent amendment, the Anti-Discrimination Act of 2007 only prohibited discrimination on the basis of “present or future state of health”. This implied that people might, in principle, be discriminated against on the basis of a past illness from which they were now cured or in remission. For example, a person who had had cancer in the past and was denied a job because the employer feared he or she would relapse was not protected. The bill changes this. An employer who discriminates on the basis of an employee’s medical history can now be ordered to pay damages amounting to six months’ salary. The employee or candidate who feels discriminated against, for example during a job application or dismissal, only has to prove a presumption of discrimination. Case law takes into account the chronology of the facts. It will then be up to the employer to prove that the decision to dismiss or not to hire was taken on non-discriminatory grounds.

Nevertheless, this change is not entirely new. Both national CBA no. 38 on the recruitment and selection of employees and national CBA no. 95 on equal treatment during all phases of the employment relationship already apply the protected criterion of “medical history”. However, unlike the Anti-Discrimination Act, these CBAs do not provide for compensation for the victim of discrimination.

Concretely, in the Anti-Discrimination Act, the words “current or future state of health” will be replaced by the phrase “state of health”, so that a past state of health is also covered. This will also put an end to the ambiguity that existed on this topic and the different interpretations in case law and legal doctrine.

It is worth noting that a distinction based on one’s state of health is not prohibited in all circumstances. As long as the employer can justify the difference in treatment on the basis of a legitimate aim and that the means of achieving that aim are necessary, there is no discrimination.

Our HR Beacon 2022 survey showed that few companies have ever received a formal or informal complaint of discrimination at work. For discrimination complaints on the grounds of health, the figures are therefore currently low.

Action point

Through an amendment to the Anti-Discrimination Act, it is now not only forbidden to discriminate on the basis of an employee’s or candidate’s current or future state of health, but also on the basis of his or her medical history. An employer who cannot justify discrimination based on the state of health will face the risk of having to pay compensation of six months’ salary to the victim of the discrimination.