Discrimination testing in the workplace made easier

The strict requirements for social inspectors to use discrimination testing in the workplace will be relaxed as of 8 May 2022. The aim is to make such tests more efficient and easier to perform.

In this Infoflash, we review the rules applicable to discrimination testing and we give details of the changes that will come into effect on 8 May.

Discrimination testing: what is it?

Unlike for most other infringements under social penal law, it is necessary to prove criminal intent for discrimination-related infringements. However, this is often very difficult, indeed even impossible, in practice.

This is why social inspectors have now been given "specific powers in the area of discrimination" under the Social Penal Code since 1 April 2018.

Under certain very strict conditions, they are allowed to approach a company posing as customers (or potential customers) or employees (or potential employees) to verify whether discrimination based on a protected characteristic (age, sex, religious belief, etc.) has been or is being committed, without being obliged to present a proof of identity and inform the company of who they are.

What does this mean in practical terms?

The possibility for social inspectors to use specific powers in the area of discrimination is subject to strict conditions.

Anti-discrimination laws

The specific powers in the area of discrimination granted to social inspectors may only be used to verify compliance with three "anti-discrimination" laws (and their implementing decrees) in the area of labour relations.

The three laws in question are:

• Law of 10 May 2007 combating certain forms of discrimination,
• Law of 10 May 2007 combating discrimination between men and women,
• Law of 30 July 1981 suppressing certain acts motivated by racism or xenophobia.

A very specific framework

Currently, social inspectors have the power to present themselves as customers, potential customers, workers or potential workers, to verify whether discrimination on the basis of a protected criterion has been or is being committed, however only in the presence of objective indications of discrimination, following a complaint or a report, supported by data mining and data matching results.

Data mining means searching, on an ad hoc basis, for links in collected data in order to establish profiles for more in-depth searches.

Data matching means comparing the two sets of data collected with each other.

As of 8 May 2022, this power will no longer be subject to these conditions cumulatively. Objective indications of discrimination will therefore no longer have to be supported by data mining and data matching results.

We emphasize, and this has not changed, that the specific powers in the area of discrimination may only be exercised after obtaining the prior and written authorisation of the Labour Prosecutor or the Public Prosecutor.

They must, moreover:

• be limited to creating an opportunity to highlight a discriminatory practice,
• be exercised where necessary to conduct surveillance in order to observe the circumstances applicable to regular customers, potential customers, employees or potential employees and where such observations, taken into account the principle of proportionality, cannot be made by other means,
• not have the effect of creating a discriminatory practice when there was no serious indication of practices that could be characterised as direct or indirect discrimination.

All actions undertaken during the investigation and the results must be recorded in a report and communicated to the Labour Prosecutor or the Public Prosecutor.

Minor infringements

Social inspectors tasked with exercising specific powers in the area of discrimination are prohibited from committing criminal offences while carrying out their investigation.

However, social inspectors who, while carrying out their investigation, commit criminal offences that are absolutely necessary (e.g. using a false name) to ensure the success of the investigation or to guarantee their own safety, with the prior express authorisation of the Labour Prosecutor or Public Prosecutor, do not commit an infringement. These criminal offences must necessarily be proportional to the objective sought.

Call on third parties

As of 8 May 2022, the social inspector may, within the framework of the missions entrusted to him, temporarily call upon a person who is not part of the inspection services if this is necessary for the success of his mission. However, a Royal Decree will have to determine the conditions and modalities of this recourse to a third party.

Source: Article 42/1 of the Social Penal Code as amended by the Act of 1 April 2022 amending Section 2/1 of the Social Penal Code concerning the specific powers of social inspectors to make findings relating to discrimination, Belgian Official Gazette of 28 April 2022.