Discrimination: be careful with the new criteria

Recently, the anti-discrimination legislation has been the object of two important changes concerning the criteria on the basis of which employers may not discriminate against their employees.

The “gender” criterion is replaced

The law of 10 May 2007 aimed at combating discrimination between women and men provides that a distinction based on the criterion of gender (and criteria assimilated to gender) is discriminatory if it cannot be justified.

In 2020, the list of criteria assimilated to the “gender” criterion was expanded to cover all of the following: pregnancy, childbirth, breastfeeding, maternity, adoption, medically assisted procreation, gender identity, gender expression or sexual characteristics, sex change, paternity and co-maternity.

As of 19.01.2023, following the entry into force of the law of 15.11.2022, the law of 10 May 2007 is reworded as follows:

• the words “of gender” are replaced by the words “of a protected characteristic”;
• a new criterion has been added to the “protected characteristics”: that of “family responsibilities”.

What about the notion of “protected characteristic”?

“Protected characteristic” means gender, pregnancy, childbirth, breastfeeding, maternity, medically assisted procreation, family responsibilities, gender identity, gender expression, gender characteristics and gender reassignment.

What about the notion of “family responsibilities”?

The notion of “family responsibilities” is inserted into the law in order to extend the situations covered in the fight against discrimination.

By introducing this criterion, the legislator wishes to protect people with family responsibilities and allow them to obtain and hold a job without being discriminated against. In addition, they must be able to perform their duties without conflict between their work and family responsibilities.

For example, an employer who is proven to have refused to hire an applicant because the applicant has young children and indicated during the interview that he would like to take parental leave in the future could be found guilty of discrimination based on family responsibility.

In addition, it is provided that an employee who is absent from work due to maternity leave, birth leave, adoption leave or other leave taken in connection with family responsibilities has the right to return to the same job at the end of the leave. If this is not possible, the employer must assign the employee to an equivalent or similar position that is in line with his employment contract.

What in case of discrimination?

When an employee believes that he has been discriminated against on the basis of the protected characteristics, he may file a lawsuit to seek compensation.

If the employer is found guilty of discrimination, he is obliged to pay the employee compensation equal to the amount of the damage actually suffered, or a lump sum of up to six months' pay.

The “health status” criterion is modified

The law of 10 May 2007, designed to combat certain forms of discrimination, provides that a distinction based on “health status” constitutes discrimination if it cannot be justified.

What about the notion of “health status”?

Until 26 October 2022, no discrimination could be made on the basis of the employee's current or future health status. The terminology used did not explicitly protect the employee from acts of discrimination based on his past health status.

Since 27 October 2022, following the entry into force of the law of 20 July 2022 amending the aforementioned law of 10 May 2007, the terms “current or future health status” have been replaced by the terms “health status” in order to protect the medical history of employees.

What in case of discrimination?

Until 26 October 2022, an employee could not claim a lump-sum compensation from his employer in case of discrimination based on his medical history, which forced him to justify the amount of his damage in order to receive compensation.

Only the employee who was discriminated against on the basis of his current or future health status could choose between claiming compensation corresponding to the damage actually suffered or a lump-sum compensation of up to six months' pay.

Since the entry into force of the law of 20 July 2022, on 27 October 2022, an employee who has been discriminated against on the basis of his current, future or past health status may bring a lawsuit and claim - if his employer is guilty of discrimination - either an amount corresponding to the damage actually suffered, or a lump sum of up to six months' pay.

Be cautious about discrimination, especially in the case of dismissal. In case of doubt, do not hesitate to contact our Legal Partners via legalpartners@partena.be

Sources: Law of 15.11.2022 amending the law of 10 May 2007 to combat discrimination between women and men, and the law of 16 December 2002 establishing the Institute for the Equality of Women and Men, Belgian Official Gazette 09.01.2023, law of 20 July 2022 amending the law of 10 May 2007 to combat certain forms of discrimination with regard to the ground of discrimination based on health status, Belgian Official Gazette 17.10.2022.