Discrimination: new forms and new criteria

A law amending the various anti-discrimination laws has just been published in the Belgian Official Gazette.

Anti-discrimination legislation provides legal protection in particular for workers discriminated against on the basis of a protected criterion (sex, age, state of health, etc.).

To adapt this legislation to social changes, the law of 28 June 2023 recognizes, among other things, new forms of discrimination including multiple discrimination; it also updates the list of protected criteria.

Multiple discrimination

“Multiple discrimination” refers to cases where a person is subjected to unjustified differential treatment on the basis of several protected criteria.

These different criteria may be real or assumed, granted on their own or by association, taken alone or in combination with one or more protected criteria under the various anti-discrimination laws.

Brief explanation of the terms used:

• real criteria: the person is discriminated against because he or she has a protected characteristic;
• assumed criteria: the person is discriminated against because he gives the impression of having a protected characteristic, even though it is in fact foreign to him. For example, a worker who has taken part in a movement organized by the LGBTQIA+ community (lesbian, gay, bisexual, trans, queer, intersex and asexual community)  is discriminated against if he is dismissed because the employer considers that he has a particular sexual orientation;
• criteria granted on their own: the person is discriminated against on the basis of personal characteristics;
• criteria granted by association: the person is discriminated against because of his association with a person presenting a protected ground. For example, a worker who has a disabled child and takes more time off work to care for the child is discriminated against by association if he is dismissed for this reason (it is not the worker who is subject to a protected criterion, but his child).

Important note! The introduction of the concept of “multiple discrimination” will have an impact on the grounds for justification. The justification regime differs according to the protected criterion. From now on, when a person is subject to differential treatment on the basis of at least two criteria, the justification regime most favorable to that person will apply. In other words, it will be necessary to apply the most stringent conditions of justification allowing a derogation from the ban on discrimination.

Cumulative discrimination and intersectional discrimination

Multiple discrimination can take two different forms:

• cumulative discrimination;
• intersectional discrimination.

Cumulative discrimination is a situation that arises when a person is discriminated against as a result of a distinction based on several protected criteria that add up to, but cannot be dissociated from, each other.

For example, a worker who is homosexual is discriminated against if he is dismissed because of his homosexuality and his state of health, certain illnesses being associated with homosexuals.

Another example: a candidate was not hired because of both his age (44) and gender (male). The employer justified this refusal in the following terms: "As far as my group of [employees] is concerned, rather than the tasks themselves, I only have young girls aged between 20 and 30, so I'm not convinced that all the chances would be on my side to [guarantee] a close-knit group...". In this situation, this refusal is a double disadvantage because the candidate cumulates two “disadvantageous” characteristics: he's a man and he's older (Liège Labor Court decision of 11 August 2017).

Intersectional discrimination occurs when a person suffers discrimination as a result of a distinction based on several protected criteria that interact and become inseparable.

For example, the refusal of the HPV vaccine to homosexual boys constitutes an unjustified distinction based on gender and sexual orientation: boys are treated less well than girls when it comes to intervention in drug costs, and vaccinating girls offers indirect protection to heterosexual boys. It is therefore the intersection of the criteria of gender and sexual orientation (not all men are prejudiced and lesbians are not affected as women) that creates the specific disadvantage suffered (decision of the Brussels Labor Court of 18 March 2022).

Another example: a disabled woman is discriminated against in the workplace. To determine what form of multiple discrimination is involved, the following question can be asked: would the person have been discriminated against if they had only been a woman and had no disability, or if they had only had a disability and had been a man? If the answer is negative, i.e. the person would not have been discriminated against if only one of the protected criteria had been present, this is intersectional discrimination. If the answer is positive, i.e. the person would still have been discriminated against if there had been only one of the protected criteria, this is cumulative discrimination.

New protected criteria 

Finally, the list of protected criteria has been adapted:

• the criterion of social condition is now included, targeting the person's current social situation. For example, if a candidate is turned down for a job interview because he has no permanent address, they are being discriminated against;
• the “gender reassignment” criterion is replaced by the “medical or social transition” criterion.

Be cautious, especially in the case of dismissal. If you have any doubts about the existence of discrimination, do not hesitate to contact our Legal Partners via legalpartners@partena.be.

Source: law of 28 June 2023 amending the law of 30 July 1981 to suppress certain acts inspired by racism or xenophobia, the law of 10 May 2007 to combat certain forms of discrimination and the law of 10 May 2007 to combat discrimination between women and men, Belgian Official Gazette of 20.07.2023.