In a judgment of 29 September 2020, the labour court in Antwerp ordered a company to pay 18 months' gross salary to a candidate-employee who is deaf and was pregnant when she applied for a job. As the court ruled that the company discriminated against her three times, it has been ordered to pay three times the fixed compensation stipulated by law for victims of discrimination in employment matters. This is a remarkable judgment because the court has established triple discrimination and, for the first time, has cumulated the three corresponding damages in full.

The woman had applied for the position of Research and Development Assistant at a pharmaceutical company. According to the job advertisement, a scientific profile was sought and the tasks would be to assist the Product Managers in their scientific activities, e.g., by writing technical bulletins, organising scientific study days, etc.

One day after she had sent her application, the candidate was invited for a telephone interview with a Product Manager. She replied that this was difficult for her because she had a hearing problem and asked if communication could be continued by e-mail or if an appointment could be set up. The Product Manager agreed to schedule an appointment and added that "deafness is an issue”, but he wanted to see if it was “a small or large problem”. After their interview, the woman was offered a temporary administrative job to enter data. According to the Product Manager, this was an opportunity for her to get to know the company and gain experience. The woman did not accept this offer and was ultimately not offered the position of Research and Development Assistant.

Triple discrimination

The rejected candidate, supported by Unia (i.e. the Centre for Equal Opportunities) and the Institute for Equality between Women and Men, could not agree to this and went to the labour court. She claimed that she was the victim of triple discrimination and claimed three times the fixed compensation of six months’ salary under the General Anti-Discrimination Act and the Gender Act, respectively.

Firstly, she claimed that she was discriminated against on the basis of her disability during the recruitment procedure. The parties agree that her hearing impairment constitutes a “disability” within the meaning of the anti-discrimination legislation. The woman stated that she had only received a proposal to carry out an additional temporary assignment, and the other applicants had not. According to the court, there was a presumption of discrimination and the company failed to prove that there was no link between the temporary assignment and her hearing impairment. Moreover, the court noted that (i) this candidate had been invited to only one interview and the other candidates to at least two, (ii) that the company had never responded to the candidate’s e-mail with information on how to deal with her deafness in the company and (iii) that a serious analysis was never made of the real impact of her deafness on a possible cooperation. According to the court, there was therefore direct discrimination on the grounds of disability during the recruitment procedure.

Secondly, the candidate stated that she was also discriminated against on the basis of her disability with regard to the decision of (non-)recruitment. The court also ruled on this point that there was a presumption of discrimination, which was not sufficiently rebutted by the company. The vacancy showed that the company was looking for a scientific profile. The candidate had a doctorate in bio-engineering. Moreover, the position would mainly involve editorial tasks and there is no essential and determining professional requirement not to have an auditory disability for the position of Research and Development Assistant. According to the court, the candidate was not recruited because of her hearing impairment and therefore there is direct discrimination on the grounds of disability by the decision not to recruit.

Finally, the candidate claimed that she was discriminated against because she was not hired for reasons related to her pregnancy, a criterion protected by the Gender Act. According to the court, it appeared from the company’s own communications that the candidate was being treated unfavourably because she would not be immediately employable as a result of her pregnancy. The court therefore decided that there was direct discrimination on grounds of gender.

Cumulation of damages

The court ruled not only that there was a threefold discrimination, but also that the three corresponding damages could be cumulated. According to the Court, this cumulation is not excluded by either Belgian or European anti-discrimination legislation. In addition, the Court considers that refusing the cumulation would constitute discrimination itself, since it would unjustifiably treat the victim of multiple discrimination in the same way as the victim of discrimination on the basis of only one protected criterion. The claimed cumulation was thus granted and the company was ordered to pay compensation of 18 months’ salary (i.e., three times six months). The company has already announced that it will appeal against the judgment.

Action point

This judgment points once again to more stringent case law in the field of discrimination. It is therefore important for employers to take well-considered and well-founded decisions in recruitment procedures and, where possible, to document them. In this way, the risk of discrimination can be limited.