Which conditions must be met to constitute discrimination?
According to the anti-discrimination legislation, discrimination occurs when you are treated differently in a comparable situation without being able to justify the difference. Be aware that not every difference constitutes (prohibited) discrimination and not every form of discrimination is covered by the anti-discrimination legislation.
For a difference in treatment to constitute discrimination, you must be able to answer yes to each of the following questions:
1. Is there a connection to a protected characteristic?
The alleged discrimination must relate to a personal characteristic protected by the anti-discrimination legislation. These protected characteristics include, among others, so-called race, skin colour, descent , national or ethnic origin, sexual orientation, age, disability, religion or beliefs, civil status and family composition, health, physical or genetic characteristics, wealth, political opinions, trade union affiliation, social origin and language.
Not all personal characteristics are protected by anti-discrimination legislation. Example: some municipalities apply different rates for non-residents for their sports facilities. The personal characteristic of 'living in a particular municipality' is not protected by the anti-discrimination legislation. The distinction made cannot, therefore, be judged under the anti-discrimination legislation.
Protected characteristics can be:
- Real or assumed:
- Real: for example, if you are gay yourself and are a victim of discrimination.
- Assumed: if you become a victim of discrimination because the perpetrator thinks (believes) you are gay even though you are not.
- Personal or attributed by association:
- Personal: you have a disability.
- By association: if parents are discriminated against because of their child's disability.
- A protected characteristic or a combination with other protected characteristics:
- Intersectional discrimination: a person is discriminated against for a distinction based on multiple protected criteria that interact and are inseparable. For example, when a woman wearing a Muslim headscarf is refused entry to a sports club. In this case, the protected characteristics of gender and religion are both present and are inseparable (a man who is Muslim or a woman without a headscarf would be admitted).
- cumulatieve discriminatie: a person is discriminated against as a result of a distinction based on multiple protected characteristics that add up but remain separable. For example, an older man who is not recruited because he would not fit into a team of young women.
Protected characteristics are generic.
Therefore the anti-discrimination legislation, protects both minorities and majorities:
- Gay people, but also straight people.
- Elderly people, but also young people (and people of any other age).
- People of colour, but also white people.
- Religious people, but also non-religious people.
2. Has the discrimination arisen from any of the areas covered by the anti-discrimination legislation?
The federal anti-discrimination legislation applies to the following areas of public life:
- Access to and supply of goods and services that are publicly available.
- Social protection, including social security and health care.
- Social benefits.
- Supplementary social security schemes.
- Employment ('labour relations').
- Mention in an official document or record.
- Membership or involvement in an employers' or employees' organisation, trade union or any organisation whose members are engaged in a particular profession, including the benefits provided by those organisations.
- Access to and participation in - as well as any other exercise - of an economic, social, cultural or political activity open to the public.
Other areas are the responsibility of the communities and regions. Examples include residential rental, regional public transport, culture, education, etc. The decrees and ordinances of the communities and regions regulate their approach to discrimination in these matters.
Good to know: anti-discrimination legislation does not apply to private life. You can invite whoever you want to your home. You cannot either be accused of discrimination because, for example, as a consumer you choose to go to a certain bakery, but not to another. The reverse is not applicable. As a provider of goods, a bakery may not discriminate against customers.
3. Does it constitute prohibited conduct under the anti-discrimination legislation?
It is not enough that a distinction be made merely on the basis of a protected characteristic. It must also involve any of the following prohibited behaviours:
Open Direct discrimination
Direct discrimination is a direct difference that is made based on one or more protected characteristics, and this disparity cannot be justified under the provisions of the anti-discrimination legislation. Direct discrimination occurs when someone is treated more unfavourably than another person in a comparable situation on the basis of one or more protected characteristics. Example: clients from certain population groups are not allowed into a café.
Open Indirect discrimination
Indirect discrimination is indirect difference that is made based on one or more protected characteristics, and this disparity cannot be justified under the provisions of the anti-discrimination legislation. Indirect discrimination occurs when an apparently neutral provision, criterion or practice puts persons with one or more protected characteristics at a particular disadvantage compared to other persons. Example: a person with an assistance dog is refused entry to a cafe because dogs are generally not allowed inside
Open Intimidation
Intimidation is unwanted behaviour associated with one or more protected characteristics, which has the purpose or effect of violating the person's dignity and creating an intimidating, hostile, abusive, humiliating or offensive environment. Example: a site manager makes racist remarks and jokes to and about a worker of foreign origin throughout the working day.
Open Refusal to provide reasonable accommodation
These appropriate measures are taken in concrete situations, and according to a specific need. They would enable a person with a disability to access, participate and thrive in areas covered by this law, unless these measures impose a disproportionate burden on the person who has to take them. Example: a school refuses to install a ramp at the entrance for wheelchair users.
Open Directing others to discriminate
Directing others to discriminate is any course of action that instructs a person, group, community or any of their members to discriminate on the basis of one or more protected characteristics. Example: an employer orders a temporary employment agency to only select white men under 30 for a certain position.
4. Did the difference in treatment occur without a valid reason?
If the issue is potential discrimination, then one must take a closer look at the difference in treatment that was made:
- Sometimes the difference in treatment is justified: a minor cannot drive a car, a visually impaired person cannot become an airline pilot, a person without a swimming certificate cannot become a lifeguard, etc.
- Was the difference in treatment unjustified? Only then (prohibited) discrimination occurs. For example, it would not be justified to refuse a person who meets all qualifications as a pilot merely because that person is black or to refuse a person who meets all qualifications as a lifeguard because that person is gay.
The justification mechanisms under the anti-discrimination law are complex and may differ depending on the protected characteristic, domain and prohibited conduct:
- In some cases, a distinction can never be justified. For example: a shop owner does not allow a man with black skin colour to enter their shop.
- In certain cases, a difference may be objectively justified by a legitimate goal and the means of achieving that goal must be appropriate and necessary. For example: a frail and elderly woman owns an apartment which she rents out. It is located above the flat where she herself lives. She would prefer a tenant of approximately her own age.
- In certain cases, differential treatment can be justified on the basis of a substantial and defining occupational requirement. For example, a theatre wants to hire someone to perform the role of Nelson Mandela and is looking for an actor who bears some resemblance to Nelson Mandela.
- In certain cases, a distinction may be justified on general grounds (such as a statutory provision). For example, a 30-year-old woman is not eligible for an entry-level job contract. This is due to a legal provision, as the legislator has set the age limit for entry-level jobs at 26. Good to know: anti-discrimination legislation does not apply when a distinction is the result of a provision in a law, decree or ordinance.
In certain cases, a distinction may be justified on specific grounds. For example, in the area of supplementary social security schemes, a direct distinction based on age does not constitute discrimination when age criteria are used in actuarial calculations, provided that it does not lead to gender discrimination.
4 x yeses = discrimination!
Report discrimination
Do you feel you have experienced or witnessed discrimination? Report it online or call the toll-free number 0800 12 800 on weekdays between 9.30 a.m. and 1 p.m.