Opinion: antidiscrimination or Bruges lace
Below is an editorial written by Patrick Charlier, co-director of Unia, published today in La Libre. Unia will defend his assessment of the Antidiscrimination Law this Wednesday at the Commission: we need to fill the gaps.
The antidiscrimination law or Bruges lace
2007-2017: ten years after the enactment of the Antidiscrimination Law, the time has come to evaluate it. Unia undertook this exercise based on an analysis of the 17,000 cases handled in the past decade. Although we can salute the legislators for adopting a framework that is solid, coherent and ambitious framework for combating discrimination and racism, the policymakers should not neglect to examine how it could be reinforced. The law is not perfect and it still leaves some victims out in the cold. They are the ones who motivate us to make progress.
In certain areas, the law is a bit like a piece of Bruges lace, with holes scattered here and there. Take, for example, the homophobic texts inciting violence, hatred or discrimination which remain, de facto, unpunished. In the current system, texts of this type (press crimes) must be handled in the Assize Court, unlike texts of a racist nature. But this is an arduous procedure, which is therefore virtually never applied.
In other areas as well, the law falls short of its duties towards the victims. Currently, within the framework of collective layoffs, an employer may be tempted to choose those workers who have accumulated the most days of absence due to illness. Yet, astonishingly enough, such a choice cannot currently constitute discrimination based on health condition. In fact, the antidiscrimination law refers only to the current or future state of health, but not the previous state of health. The law should also protect those who have been ill and are currently experiencing the consequences.
Furthermore, the law should more explicitly name the offences for which heavier penalties should be required. For example, extortion, torture, abuse of authority. There have been cases in which people have been abused or extorted on account of their mental disability. At the moment, the perpetrators do not risk a serious penalty for the simple reason that inhuman or degrading treatment or extortion of people based on their disability does not constitute aggravating circumstances. And this is also the case for all of the other criteria. Furthermore, one could also cite the racket of homosexuals who have been targeted in a premeditated manner via dating sites, for example.
The gaps in the law are also confirmed in other areas. Faced with the low amounts in damages and interest and the high cost of litigation, vulnerable victims of discrimination will give up fighting in court. Prospective tenants who are able to prove that they have been refused on the grounds of their skin colour are a perfect illustration of this.
The antidiscrimination law opens the door to positive actions. But in the absence of execution, it remains good intentions without concrete form. This is regrettable. Unia has been consulted by employers who wanted to give priority, or even exclusivity, to hiring people from groups that have been determined to be disadvantaged on the job market (disability, young people of foreign origin…). We have had to tell them that, within the framework of the current law, in the absence of a royal decree providing a framework for positive actions, they would run the risk of being prosecuted for discrimination. Without a royal decree, the law would have to explicitly provide that such measures may be taken under the supervision of the judge.
It is because we work daily side-by-side with the victims of discrimination, seeking satisfactory solutions for them, as well as for society as a whole, that we have been able to identify loopholes in the Lace that makes up the antidiscrimination legislation. This is why the law deserves to be amended by Parliament. And this is what we are calling for, today and tomorrow, if necessary, from our representatives.
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