Thematic feature - implementation of the EU framework equal treatment Directive

This article examines the Belgian situation, as of August 2003, with regard to the implementation and impact of the 2000 EU Directive establishing a general framework for equal treatment in employment and occupation, which seeks to combat discrimination on the grounds of religion or belief, disability, age and sexual orientation.

The EU Directive establishing a general framework for equal treatment in employment and occupation (Directive 2000/78/EC) was adopted in November 2000 (EU0102295F). The Directive seeks to lay down a general framework for combating discrimination, as regards employment and occupation, on the grounds of: religion or belief; disability; age; and sexual orientation. It is to be implemented by the EU Member States by 2 December 2003 (with a possible later deadline for the provisions on age and disability discrimination, if Member States see this as necessary).

A Community Action Programme to combat discrimination 2001-6 was also adopted in November 2000 (EU9912218F). It supports activities combating discrimination on grounds of racial or ethnic origin, religion or belief, disability, age or sexual orientation. Its priorities are: analysis and evaluation, developing the capacity to combat and prevent discrimination, and raising awareness.

In August 2003, the EIRO national centres in each EU Member State (plus Norway), were asked, in response to a questionnaire, to assess how the framework equal treatment Directive is being implemented in each country, and the responses of the state and social partners. The Belgian responses are set out below (along with the questions asked).

Existing situation

What was the legislative situation and the policy position of the state as at December 2000 (ie when the Directive was adopted) concerning employment discrimination in the areas of: age; disability; religion or belief; and sexual orientation?

At the time of the Directive's adoption, Belgian legislation only partly met its requirements

National collective agreement No. 38- agreed by the social partners in the bipartite National Labour Council (Conseil National du Travail/Nationale Arbeidsraad, CNT/NAR) in 1983 and updated in 1998 - bans all forms of discrimination by the employer during recruitment and selection on the grounds of personal characteristics that are not linked to the position or the nature of the company concerned. For instance, in principle employers cannot discriminate on the grounds of age, medical history, religion or belief, sexual orientation or disability.

The law of 13 February 1998 confirms the ban on age discrimination in recruitment and selection (TN0010201S). A maximum age limit imposed on individuals to exclude them from applying for a job or being recruited is not allowed in either recruitment or selection. This ban covers both explicit and implicit references to an age limit. Furthermore, the 1998 law is not only aimed at employers themselves, but also at recruitment and selection carried out on the part of the employer by other parties.

The law of May 1999, which provides in general terms for equal opportunities for men and women in employment, does not contain a prohibition of discrimination on grounds of sexual orientation. Such discrimination can be forbidden only as a special form of either indirect sex discrimination or sexual harassment, which are both forbidden by the law.

There was no specific protection against discrimination on grounds of religion or belief, with at most indirect protection where considered as indirect race discrimination. The law of 12 April 1994 prohibits and punished racial discrimination in employment.

With regard to the treatment of people with disabilities in employment, there was no specific legislation prohibiting discrimination against them. The law of 16 April 1963 created disabled employment quotas for private companies, as well as public administrations and some public utility institutions, that employ at least 20 employees (TN0102201S). However, for the private sector the royal decrees necessary for the implementation of the law have never been issued, whereas the law itself was partly abolished for the public sector in 1999. Nevertheless, various specific regulations support the training and employment of disabled people through support measures and subsidies.

State response

How has the state responded to the Directive since December 2000 in terms of:

• legislation concerning discrimination and draft legislation on the grounds of age, disability, religion or belief and sexual orientation (please specify details of title, date and main provisions and exclusions). With respect to age and disability, please specify if the state has opted to take the option of extending the deadline for implementation of the Directive and, if so, on what grounds;
• broader policy response, consistent with the Action Programme, for example: support for anti-discrimination activities; analysis of the extent and nature of the discrimination; arrangements for monitoring and enforcement; positive action; information and dissemination activities; and promotion of social dialogue and anti-discrimination collective agreements.

Even before the framework equal treatment Directive was adopted in 2000, the Belgian federal parliament was preparing a general anti-discrimination law (BE0212304F), which was finally passed on 25 February 2003 (BE0307303F) and constitutes the main measure transposing the Directive. The act prohibits discrimination, both direct and indirect, on grounds of 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 the 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.

In relation to the framework equal treatment Directive, the law of 25 February 2003 is notable in several respects. For instance, with specific regard to employment, the Belgian law provides that a difference in treatment on one of listed grounds 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 departure from the Directive's approach. The Directive allows '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'. Only direct sex discrimination at work can never be justified, because it is still regulated by the abovementioned law of 7 May 1999, which explicitly rules out such justification.

The government did not take up the option of extending the implementation deadline with regard to the Directive's age and disability provisions. Both discrimination bans came into force immediately and fully.

A law of 20 January 2003 brought the existing Belgian legislation against race discrimination into line with the basic concepts of the EU Directive (2000/43/EC) implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (EU0006256F).

On 8 May 2002, the parliament of the Flanders region adopted an law that advocates proportional participation in the labour market for all groups of the working population. This law is also aimed at the elimination of discrimination on the grounds covered by the framework equal treatment Directive, particularly in the areas of vocational training and the provision of labour.

At the policy level, Belgium has set up 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) regulated by the law of 16 December 2002. This institute has a set of supporting tasks, such as: conducting, guiding and coordinating studies and research concerning gender and equality between women and men; making recommendations for improving the legislation against discrimination; and gathering and publishing statistical information. With regard to the other grounds of discrimination covered by the Directive, similar supportive and awareness-raising tasks are part of the remit of the Centre for Equal Opportunities and the Fight against Racism.

Social partner response

What have been the views and policy response of the social partners to (a) the Directive and (b) its transposition into national law? How has social dialogue proceeded on the issues covered by the Directive? Have there been any collective agreements on the issues covered by the Directive since December 2000 in terms of age, disability, religion or belief, or sexual orientation (please give examples, including reasons and bases for introduction)?

The Belgian social partners were involved in the implementation of the framework Directive at institutional level, through the advisory role of the National Labour Council, on which representative trade union and employers' organisations sit. With regard to the law of 25 February 2003, employers' and trade union organisations unanimously stated that the employment context is only one of the areas where discrimination needs to be addressed, and they were both apprehensive of the perceived vagueness of the concepts of discrimination in the new legislation. There was also a consensus on a gradual phasing in of the prohibition of age discrimination, because many sectors and companies use age to determine conditions of employment, either directly or indirectly through seniority. However, this request fell on deaf ears. The consensus between the social partners disappeared on such issues as the burden of proof and positive action. Employers' organisations were predictably opposed to a reversal of the burden of proof to rest with the employer, and a priori rejected any proposals for the introduction of employment quotas for the groups covered by the Directive as a form of positive action.

Although the Belgian representative trade union organisations have had the competence to challenge banned forms of discrimination in the courts for a long time, they have only gradually developed a strategy aimed at diversity in employment. The designation of 2003 as the European Year of People with Disabilities (EU0209201N) has prompted consideration of the problems that face people with an occupational disability. Various trade unions and companies are developing proposals or plans for positive action in this area and the new federal government also wants to play a role in this. However, this has not led to concrete results as yet.

The social dialogue in the form of collective agreements has so far achieved few new results in the fight against discrimination. As noted above, some national collective agreements concluded in the National Labour Council deal with issues relevant to the framework Directive, but no new agreements of this type on discrimination issues have been concluded since the adoption of the Directive, except for an update of existing agreements that ban sex discrimination and discrimination against part-time workers. In particular as regards the important issue of age discrimination in employment, a social partner initiative is still awaited. A recent national collective agreement on outplacement - No. 82 of 10 July 2002 (BE0208301N) - even arguably goes in the other direction by implementing rather than combating age discrimination: the agreement's right to outplacement is limited to employees aged 45 and above.

Impact

What has been the impact of any initiatives in your country in the areas covered by the Directive? Are there monitoring arrangements in place, and if so, what experiences do they report in response to the Directive?

The concrete practical impact of the framework equal treatment Directive in Belgium cannot yet be assessed or predicted. The implementing legislation is brand new, and information processes over it are still running. Various workshops, reports and publications, as well as information sessions by the social partners and by the Centre for Equal Opportunities and the Fight against Racism, are currently informing the parties involved and their advisors. The first litigation based on the new ant-discrimination law of 25 February 2003 has already been started. However, legal certainty and effectiveness are, in the view of some experts, hindered by the limited technical quality of the transposition legislation. (Marc De Vos, Ghent University)