New anti-discrimination law under fire
A new general anti-discrimination law was adopted in Belgium in February 2003. It bans discrimination on many grounds and in various contexts, including employment relationships. It was expected that the law would have a major positive impact on equality at work, but has come under criticism for being unclear and hard to apply. For example, the law's definition of the discrimination to be prohibited is thought by some experts to be at odds with recent EU Directives on the issue, while some of the provisions may create difficulties in the employment context.
A new law aimed at fighting discrimination (BE0212304F) was adopted on 25 February 2003 and published in the official journal (Belgisch Staatsblad/Moniteur Belge) on 17 March. The law bans discrimination on the grounds of various 'protected characteristics'- ie sex, claimed race, colour, national origin, national or ethnic descent, sexual orientation, civil status, birth, wealth, age, religion or belief, current or future state of health, disability or physical characteristics. The ban applies to both direct discrimination - ie where there is a a difference in treatment which lacks objective and reasonable justification and is directly based on any of these protected characteristics - and indirect discrimination - ie where a provision, criterion or practice which is apparently neutral has a damaging effect on people with a protected characteristic, without being based on an objective and reasonable justification. Moreover, the law also bans other forms of discrimination - ie harassment, instruction to discriminate and the absence of reasonable arrangements for people with disabilities. The law is of general application, covering not only employment, but also many other areas, such as the supply of goods and services.
As, in practice, discrimination is often difficult to prove and to penalise, the law contains an large number of rules in order to help make its discrimination bans enforceable. These include: making discriminatory agreements invalid; making criminal sanctions available; shifting the burden of proof in court cases to the party alleged to have discriminated; introducing the possibility to have discrimination suspended by a court; and allowing associations, trade unions and other bodies to bring discrimination cases. The right to bring cases is also extended to 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), which has been given an important new role by the law.
Perceived lack of clarity
The then coalition government of socialists, liberals and environmentalists led by Prime Minister Guy Verhofstadt was the driving force behind the anti-discrimination law, and primarily its French-speaking socialist members - with the Minister for Employment and Equal Opportunities, Laurette Onkelinx and Senator Philippe Mahoux to the fore. The law was already under discussion in parliament when two EU Directives to combat discrimination were approved in 2000: Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (EU0006256F); and Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation (EU0010274F). The Belgian anti-discrimination law had to observe the EU Directives, but on the other hand sought to go further in combating discrimination. The original texts were thus partially amended, resulting in legislation which some commentators believe is confusing.
The crucial question of what exactly constitutes 'discrimination' is, according to legal experts, rather hard to establish in the combined light of the Belgian law and the EU Directives. The Belgian law uses definitions that are difficult to understand in the light of the EU provisions, which nevertheless apply compulsorily as the minimum level of protection. The legal definition of 'permissible' discrimination is seen as equally problematic. With specific regard to employment, the Belgian law provides that a difference in treatment is regarded as being objectively and reasonably justified if, because of the nature of an occupational activity or the conditions of its performance, the characteristic in question constitutes 'an essential and decisive occupational requirement', as long as the aim is legitimate and the requirement is appropriate. This appears to be a noteworthy departure from the Directives' approach. The Directives allow 'objectively justified' differences in treatment only in the case of indirect discrimination, when there is a 'legitimate aim and the means of achieving that aim are appropriate and necessary'. The Belgian law allows both direct and indirect discrimination at work where objectively (and reasonably) justified, but under the more restrictive condition that there must be 'an essential and decisive occupational requirement'.
As Belgian legislations has to respect the EU Directives, there is thus a pressing problem, according to the critics: the anti-discrimination law's definition of the fundamental issue of banned discrimination is difficult to reconcile with EU obligations in this area.
According to commentators, the implementation of the new anti-discrimination law also creates practical difficulties in the employment context. Employers, employees and their organisations do not just have to deal with unclear basic definitions, but are also confronted with a number of anti-discrimination provisions that are difficult to apply. Examples of the numerous problems identified by critics include the following:
- reasonable arrangements for people with disabilities. It is unclear whether employers have to pursue a forward-looking policy in this area (ie put the arrangements in place even if they have no job applicants or employees in this category), or whether they can wait until a disabled applicant or employee appears. Opinions tend towards the latter, but it is argued that the necessary investments will then often be disproportionate - and thus unreasonable - in relation to the individual person with disabilities;
- age. In many sectors and companies, employees' age is used to determine various conditions of employment, either directly or indirectly through seniority-related provisions. A number of labour laws indeed allow this, for example with regard to early retirement, supplementary pensions, outplacement and calculation of notice periods. Whether the new law's age discrimination ban will require a major upheaval in this area is an open question. The relevant EU Directive allows for a gradual introduction of the prohibition of age discrimination, but the Belgian lawmaker has chosen an immediate ban. Employers and trade unions have been left to deal with the consequences; and
- race, descent and colour. Many selection criteria used in recruitment can, under the terms of the new law, be considered as indirectly discriminating against immigrants - for example, requirements related to language skills, qualifications, clothing and working flexibility. On the other hand, Belgian labour law lays down regulations with regard to the use of the country's national languages in employment, as well as the duration of working time, the timing of holidays etc. How employers should reconcile these two differing approaches is again unclear.
The new general anti-discrimination law is the high point so far in the government’s fight against discrimination in society. The law could have an important impact at all stages of the employment relationship - ie recruitment, conditions of employment, promotion and dismissal. The law, however, is plagued by an unacceptable lack of clarity, is difficult to reconcile with existing laws, and creates friction with the relevant EU Directives. From a legal and technical point of view, it brings about legal uncertainty that helps nobody. An amendment of the law is thus required, otherwise its effect will either fade or only materialise through years of clarifying court decisions. If the new coalition government (reformed after general elections in May 2003) wants to safeguard the ambitions of the law, it will have to take appropriate action (Marc De Vos, Ghent University).