Extension of Belgium’s anti-discrimination law - Multiple, associative and presumed discrimination is now also explicitly prohibited by law
On 20 July 2023, an amendment to the law was published in the Belgian State Gazette that significantly expands anti-discrimination legislation both substantively and procedurally. Now, the Belgian legislator recognises multiple, associative and presumed discrimination and thus codifies European case-law. In addition, the new law broadens the sanctions that can be imposed by a judge when discrimination is found.
On 20 July 2023, an amendment to the law was published in the Belgian State Gazette that significantly expands anti-discrimination legislation, both in terms of its material scope and in terms of the sanctions that can be imposed by a court upon a finding of discrimination.
With this legislative amendment, the Belgian legislator explicitly recognises for the first time the concept of “multiple discrimination”. The new law recognises two forms of multiple discrimination, namely cumulative discrimination (discrimination based on multiple protected criteria that are added together but remain separable) and intersectional discrimination (discrimination based on multiple protected criteria that interact and become inseparable).
In particular, the explicit recognition of intersectional discrimination by the Belgian legislator concerns a significant extension of the existing protection against discrimination. The addition of this form of discrimination, which only exists thanks to a combination of several protected criteria which – in the specific situation at hand, individually do not constitute discrimination – represents a significant broadening of the material scope of anti-discrimination law. This broadening will result in additional situations that could be considered discriminatory.
As an example of multiple discrimination, the explanatory memorandum refers to the case of a person who sent his CV via the VDAB website to an ambulance company which was seeking a driver for ambulance transport. The applicant, of Belgian nationality, mentioned in his CV his surname and place of birth which indicated his Eastern European origin. The company manager thought she was sending a reply to a VDAB employee, but in reality her response landed with the applicant: “Foreigner, 22 years old, no experience, so unnecessary to send me this. No foreigners, no people without experience and no women with young children, that is already doomed to failure”. In this case, a (single) racial discrimination was recognised. If the person who sent the CV had been a woman of foreign origin with young children, the refusal to hire her would have been multiple discrimination as she would have combined several protected criteria.
In addition, the new law prescribes that in cases of multiple discrimination, the most stringent conditions allowing a derogation from the prohibition of discrimination will always prevail. Consequently, a person who is the subject of a difference in treatment based on at least two criteria will always be subject to the most favourable justification system.
Furthermore, the new law further expands the substantive scope of application of federal anti-discrimination law by explicitly adding two more forms of discrimination to the legal framework on discrimination: discrimination by association (discrimination against someone who is associated with a person with a protected characteristic but does not himself possess that characteristic) and discrimination on the basis of a presumed criterion (discrimination because of the assumption that the victim possesses a protected criterion). For example, a person is discriminated against because they are deemed to have a particular sexual orientation because of their involvement in an LGBTQI+ organisation or because they are the parent of a child with a disability. This extension codifies already existing case-law of the Court of Justice of the European Union (C‑303/06, Coleman, 17 July 2008) and of the European Court of Human Rights (25536/14, Skorjanec, 28 March 2017).
Additionally, the legislator also reformulates three existing discrimination grounds. Discrimination based on “sexual preference” becomes discrimination based on “sexual orientation” in the Dutch text (the French version of the legal text already appropriately reflects the legislator’s intention and thus does not need adapting), and discrimination based on social origin, “or condition” is added in order to take into account, for example, the situation of homeless people. Discrimination based on “gender reassignment” is replaced by the words “medical or social transition”.
In addition to its material scope, the new law broadens the sanctions that can be imposed by a court upon a finding of discrimination. In the case of multiple discrimination, the legislation now also provides for the possibility of cumulating the flat-rate damages determined by law. Consequently, from now on, a judge can impose the lump-sum damages provided in the case of workplace discrimination, being 6 months’ gross salary, several times according to the number of protected criteria violated. By doing so, the legislator confirms a judgment of the labour court of Antwerp (see this previous Newsflash). In the case of discrimination outside the employment relationship, the fixed damages are tripled and indexed annually. Finally, the legislative amendment also extends the possibility of imposing a cease-and-desist order. In the case of a cease-and-desist order, a judge can now also impose positive measures, such as implementing a diversity policy to prevent the recurrence of discrimination and always require the publication of a cease-and-desist order. Previously, a judge could only impose publication if it could help stop the challenged act or its effects. This condition now disappears.
Key message
With the explicit recognition of intersectional discrimination by the Belgian legislator through the legislative amendment of 22 June 2023, employers in Belgium should take this form of discrimination into account in their general HR policies. Moreover, to prevent discrimination, it is also advisable to include intersectionality in the company’s diversity policy, especially now that the legislator has once again tightened the sanctions in case of a finding of discrimination.