Discrimination in the workplace anno 2022: How recent legislation and case law affects you and your company

As a society, we may never have been more aware of discrimination than we are today. This goes for the workplace as well. Perhaps your company has made a special effort to promote diversity by introducing diversity and inclusion programs, or by offering or participating in workplace diversity awards, or by implementing tools to measure and improve inclusivity, etc.

Nevertheless, the Belgian courts are frequently still called upon to address the issue of workplace discrimination. We indeed notice that, more than ever, workplace diversity is a sensitive topic, and we are seeing a move towards a stricter approach in court. In addition, there have been some recent legislative initiatives in this area, such as the Positive Action Royal Decree of 2019.

What can we learn from these recent legal developments? Here are some take-aways that should help you weigh-up whether you are indeed doing everything you can to avoid discrimination and promote inclusivity and diversity:

• Training HR personnel - How do employees or job applicants become aware of discrimination? Often because they accidentally receive an email from HR that was intended for the interim agency or a colleague. Or maybe an HR employee is "too honest" with a candidate and sends the response: "Let's say that you indeed have the perfect profile with the exception of your age, sorry to be so honest about that, but it might be better for you to know why I don't invite you to the interview”; or “Foreigner, 22 years old, no experience, so no need to send me this. No foreigners, no people without experience and no women with young children, that's doomed to fail from the start”; or "Just do X. Another foreign name." These examples, all from case law, are obviously and undeniably discriminatory.

Training HR management and all employees who are in contact with job applicants, the VDAB, interim agencies, etc., is therefore a must. Employers can offer basic training on discrimination, raise awareness, train staff on communication, and point out dangers and risks. If a job termination needs to be justified (i.e., if an employee files a request based on Collective Bargaining Agreement n° 109), staff should be aware that protected criteria can never be a justification for termination and should therefore never be referred to.

We recommend that you keep note of any training provided by your in the company in the context of workplace discrimination awareness. Such evidence could prove useful in legal proceedings if you need to support your position.

• Internal audit discrimination risks – It is a good idea to carry out an internal audit in the context of both direct and indirect workplace discrimination. Are there processes in place that imply a form of discrimination? For example, if you post job vacancies only internally, so that employees can look for new colleagues within their own social network, it could be argued that this is indirect discrimination against people from other backgrounds as it prevents them from being considered for the open positions. If your company is not diverse to start with, it is unlikely to become more diverse if you post vacancies only internally.

• Policies - Is it advisable to implement a company policy on non-discrimination and diversity and inclusion? We see that larger companies usually have such a policy, and that it can sometimes be useful in court proceedings. However, it is not an absolute must (and it should be in line with your company’s profile and HR practices). Moreover, you should practice what you preach: in court proceedings, if the adverse party can demonstrate that the policy is not complied with in practice, your theoretical, paper policy is useless.

Can an employer adopt a neutrality policy? Yes, if that is the company’s wish. However, if you do decide to implement such policy, there are some points to bear in mind. The debate around the banning of headscarves and other religious symbols in the workplace is not new. There is a lot of Belgian case law, and, since 2017, important case law from the Court of Justice of the European Union. In our opinion, the main message for an employer is: if you wish to ban visible religious, political or philosophical symbols, you may do so as long as it is part of a general neutrality policy that is both clear on paper and consistently applied in practice (e.g., the ban might apply only to employees who are in direct contact with customers). Such policy must, however, be clearly established; it is not enough for an employer to simply say: “my customers don't want to see a headscarf, so I prohibit the wearing of religious symbols.”

• Internal contact point - It could also be useful to think about an internal contact person for reporting discrimination and transgressive or abusive behavior in the workplace. It is true that companies often make reference to a prevention advisor or person of trust in their work regulations. But you can go further in helping employees know where to turn if they have been the victim of, or have witnessed, transgressive behavior. You can also review your company policy regarding the treatment of employees who cross the line (disciplinary action, termination, awareness training, etc.).

• Handicap, reasonable adjustments – To avoiding discriminating against people with disabilities, you may be required to make reasonable adjustments (such as modifying a work roster, hiring a translator (often a company can obtain financial support from the State for this), or adapting the company entrance, etc.). “Disability” is a broad term. You should consider what "reasonable adjustments" are possible. As an employer, you are not required to make these reasonable adjustments in advance of their being needed. Such measures should be taken when a specific need arises, for example, when an employee makes a specific request. The adjustments that are needed will depend on the particular circumstances, and you cannot adjust in advance for every possible disability.

An example: In a case where the court recognized endometriosis as a disability, an employee requested an adjustment to allow her to work part-time. Refusing to allow such an adjustment when there are other part-time workers on the same team is likely to be considered unreasonable by the labor courts.

• Positive discrimination initiatives – What if you wish to offer a social media training for employees over 50? And what if you want to advertise a job vacancy within a specific target group, or offer internships to students with a migrant background? Well-intentioned initiatives such as these raise the question of "positive discrimination." Would they be in line with the legislation, and, specifically, with the Positive Action Royal Decree of January 11, 2019?

According to the Royal Decree, if you wish to implement a positive action, there must be an obvious inequality that needs to be addressed. You are allowed to take proportionate measures to eliminate the inequality, but you can only use appropriate and necessary means, and the measures you take should be temporary (i.e., last only until the objective has been reached, with a maximum duration of three years). The unnecessary restriction of the rights of others is not allowed. The positive action should be included in a plan (a Collective Bargaining Agreement or an accession deed) to be presented to the Minister of Employment for approval.

Prior to 2019, some companies took positive actions irrespective of a legislative framework. The advantage of the Royal Decree is that employers wishing to take such actions now have clearer rules that help them avoid the danger of being condemned for discrimination. The number of approved positive action plans is currently limited, and it remains to be seen whether more plans will be set up. The Ministry of Employment has informed us that so far only five plans have been approved by the Minister.

• Finally, as a general point, we recommend that you make sure you can justify your decisions. Chronology should be kept in mind: if an employee asks to work part-time or to work from home in the context of an illness or recovery from an illness and shortly afterwards you terminate the employment contract, there is a risk that your actions will be considered discriminatory on the basis of the employee’s health. Therefore, if you do decide to terminate the contract of an employee who has made such request, you need to have evidence of a good reason, i.e., not related to the employee’s health, for both the termination and the timing of the termination.

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For further information about our firm, please visit us on www.crowell.com

Emmanuel Plasschaert, Partner - EPlasschaert@crowell.com, +32 2 282 4084

Evelien Jamaels, Counsel - EJamaels@crowell.com, +32 2 214 2814