New anti-discrimination measures approved

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In December 2002, two bills aimed at combating racism and discrimination were amended by the Belgian Senate after being approved by the Chamber of Representatives. The first of these complements existing legislation on racism, while the second prohibits and sets out penalties for all forms of discrimination, and broadens the competences of the Centre for Equal Opportunities and the Fight against Racism. The aims of the new legislation include addressing discrimination on the labour market, which several recent studies have found to be widespread. The social partners are unhappy that they have not been involved in drafting the new legislation.

The Senate (Sénat/Senaat) voted on two bills aimed at combating discrimination on 12 December 2002. The first strengthens the law of 30 July 1981 banning certain acts prompted by racism and xenophobia. The second, originally proposed by Senator Philippe Mahoux and then reworked by the government (under the direction of the Minister for Employment and Equal Opportunities, Laurette Onkelinx), bans and sets out penalties for all forms of discrimination, whether they are founded 'on race, claimed race, colour, ancestry, national or ethnic origin, sexual orientation, civil status, birth, financial situation, age, religious or philosophical conviction, current or future health, disability or physical characteristic'. Both bills had previously been amended by the other house of parliament, the Chamber of Representatives (Chambre des Représentants/Kamer van Volksvertegenwoordigers).

Government policy on discrimination

These bills form part of the policy of the current 'rainbow' coalition government of socialists, ecologists and liberals. The fight against discrimination has been the subject of legislation in Belgium for some 20 years, but these laws have not covered all forms of discrimination, and they have not been applied systematically. Minister Onkelinx has referred to a number of problems related to the fight against discrimination and racism, which have stood in the way of the legislation being applied:

  • difficulties encountered by foreign nationals in 'passing through the initial filters' (eg the police) when lodging complaints or filing statements;
  • difficulties in proving racist intent;
  • a lack of perseverance on the part of certain complainants when confronted with lengthy procedures;
  • a reluctance sometimes observed in certain areas; and
  • the virtual immunity that racist writing has enjoyed until recently.

In reference to the measures taken to counter race discrimination, the Minister has stated that 'in the 20 years since the anti-racist legislation was adopted, it has scarcely been applied … Given the number of complaints lodged, too few sentences have been handed down.' What is more, a broad-based fight against all forms of discrimination is seen by the government as a necessity. It should also be noted that the new bills particularly target the field of employment and labour. According to Ms Onkelinx, 'in particular, it is important to point out that Article 2bis [of the current law against racism], which concerns the banning of discrimination in employment relations, continues to be problematic despite the fact that the extent of discrimination in recruitment has been scientifically proved.' Furthermore, the president of the Centre for Equal Opportunities and the Fight against Racism (Centre pour l’égalité des chances et pour la lutte contre le racisme/Centrum voor gelijkheid van kansen en voor racismebestrijding), Johan Leman, has stated that the first thing that needs to be done following adoption of the new legislation will be to apply it to employment (quoted in the Le Soir newspaper on 13 December 2002).

A number of studies in recent years have demonstrated the extent of discrimination on grounds of race and nationality on the labour market in Belgium (BE9811251F). For example:

  • a study conducted at the request of the International Labour Organisation (ILO) has highlighted the different treatment given to job applications according to whether the applicant is a native-born Belgian or a non-native-born Belgian of Moroccan origin;
  • a European Commission against Racism and Intolerance (ECRI) report has claimed that there is a disturbing situation in Belgium, and that discrimination on the labour market constitute a 'major problem';
  • a study from the Katholieke Universiteit Leuven (KUL) has highlighted the segmentation on the Belgian labour market, and finds that whole sectors of the market are closed, particularly to Turkish and Moroccan workers;
  • the Centre for Equal Opportunities and the Fight against Racism has found that the unemployment rate among 'non-native' workers is higher than among the Belgian-born population, that non-native workers are underrepresented on vocational training and socio-professional integration programmes, and that differences in pay levels and career paths persist; and
  • most recently, a study by the European Monitoring Centre on Racism and Xenophobia (EUMC) - while drawing attention to a number of positive initiatives emanating from employers, the Centre for Equal Opportunities and the Fight against Racism, and regional job placement services (ie the Office régional bruxellois de l’emploi/Brusselse Gewestelijke Dienst voor Arbeidsbemiddeling[ORBEM/BGDA], Office wallon pour la gestion de l’emploi et des besoins en formation des demandeurs d’emploi[FOREM] and Vlaamse Dienst voor Arbeidsbemiddeling en Beroepsopleiding[VDAB]) - highlights discrimination in access to employment in the three regions of Belgium.

For these reasons, the current government set about evaluating the legislation against racism and discrimination as soon as it came to power in 1999, and in March 2000 adopted a plan for combating discrimination. In concrete terms, this plan is organised around several projects: amendment of the 1981 anti-racism legislation; government support for the so-called 'Mahoux bill' on combating discrimination; the establishment of an Institute of Equality between Men and Women (Institut de l’égalité des femmes et des hommes/Instituut van de Gelijkheid van Vrouwen en Mannen); and a broadening of the competences of the Centre for Equal Opportunities and the Fight against Racism.

The contents of the two bills approved by the Senate in December 2002 should also be seen in a European context, as they transpose measures contained in two recent EU Directives on combating discrimination:

Content of the amended bills

The first of the two bills, as most recently amended, complements the 1981 legislation to combat racism racism, while the second bans and penalises all forms of discrimination in the following areas:

  • the provision or supply of goods or services;
  • conditions of access to paid employment, unpaid employment or self-employment, including selection criteria, the conditions for recruitment and promotion, conditions of employment and working conditions, and conditions relating to dismissal and payment, irrespective of the branch of activity;
  • the appointment or promotion of civil servants;
  • references in official documents or reports;
  • the dissemination of texts, opinions or other documents; and
  • access to, or participation in, an economic, social, cultural or political activity that is accessible to the public.

Harassment is also deemed to be discrimination when it is linked to one of the reasons set out above.

The second bill additionally expands the competences of the Centre for Equal Opportunities and the Fight against Racism, enabling it in particular to receive complaints and to bring civil actions. Only gender-based discrimination is excluded from the Centre’s scope: this issue is dealt with by the Institute for Equality between Men and Women.

It is also worth noting that in the field of work, the new legislation provides protection for workers who initiate a procedure against an employer, complaining of discrimination. The law will provide, among other measures, for the reinstatement of workers unfairly dismissed in these circumstances, or a compensatory payment equivalent to six months’ pay. This compensatory payment is also made if workers leave their job as a result of discrimination (from the moment that the discrimination is recognised).

Application of the new measures

The principle of fighting discrimination is widely acknowledged and rarely challenged, but how the new legislation will be applied is questioned by some. The three main characteristics and specific features introduced by the new laws are as follows:

  • the introduction of a broad definition of discrimination will allow a civil law approach, whereby discrimination is no longer seen as a crime, but as a de facto situation that needs to be rectified quickly;
  • the burden of proof has been shifted. In civil law, it will now be for the defending party to prove that it has not committed a discriminatory act; and
  • the introduction of a fast-track, effective civil procedure should reduce the discouragement felt by people and groups suffering discrimination.

The issue of the shift in the burden of proof has been a matter of considerable debate, with critics claiming that 'proving the absence of discrimination could be particularly difficult'. Minister Onkelinx has responded to this criticism on three grounds (quoted in La Libre Belgique on 3 November 2002):

  1. the reversal of the burden of proof is essential if there are to be no more situations in which the victim cannot furnish proof of discrimination;
  2. the system is already contained in the two EU Directives dating from 2000 relating to discrimination and equal treatment (see above); and
  3. for the new principle of the burden of proof to be applied, an assumption of discrimination must derive from probative elements, such as statistical data or 'situation tests' (tests de situation) which may administered by a court bailiff (huissier) (it should be noted that the way in which these 'situation tests' will be administered are to be set out in a Royal Decree).

Positions of the social partners

Trade unions and employers’ associations in Belgium have often taken positions on the issue of discrimination, and have frequently committed themselves to combating it, either by signing declarations and collaboration protocols, or by drawing up collective agreements (BE9704105F). When the two recent EU anti-discrimination Directives referred to above were at the drafting stage, the bipartite National Labour Council (Conseil National du Travail/Nationale Arbeidsraad, CNT/NAR) issued an opinion on the matter and asked to be closely involved in work on this question. That is why, in the context of the drafting of the bills that were voted on in late 2002, the CNT/NAR announced that it regretted having been left out of the discussions. The Council deplored 'the fact that the social partners have not been involved in the drafting stage, as they could have introduced a note of pragmatism through the knowledge of the situation on the ground that they have always displayed in this field.'

As for the content and implementation of the new legislation, the CNT/NAR believes that a preventive approach to the issue of discrimination is missing, and that the new measures will tend to lead to a 'judicialisation' of the burden of proof.

Commentary

Over the last few years, the fight against racism and discrimination generally has been seen as a priority by the government. The adoption of the two new bills combating discrimination is the concrete manifestation of this policy. The Centre for Equal Opportunities and the Fight against Discrimination has also expressed satisfaction with this legislative progress. It may be said that a big step forward has been taken in the employment field where there is evidence of major discrimination in recruitment and, at the same time, a real failure to enforce existing legislation. Application of the new law continues to be much more controversial, and practice alone will make it possible to measure the benefits and the constraints. (Marinette Mormont, Institut des Sciences du Travail)

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