Is medical history protected by discrimination law?

Belgium has expanded its Anti-Discrimination Act to cover individuals’ ‘state of health’, which means their past medical history is now covered.

Belgium has prohibited discrimination based on an individual’s ‘current or future state of health’ since 2007. On 7 July 2022, a bill was passed which broadens this. The concept of ‘current or future state of health’ is replaced by ‘state of health’, meaning that an individual’s past state of health is now also protected by the Anti-Discrimination Act.

Before this amendment, the 2007 Anti-Discrimination Act only prohibited discrimination on the basis of ‘present or future state of health’. This implied that people could, in principle, be discriminated against on the basis of a past illness from which they were now cured or in remission. For example, a person who had had cancer in the past and was denied a job because the employer feared s/he would relapse was not protected. 

The bill changes this. An employer who discriminates on the basis of an employee’s medical history can now be ordered to pay damages amounting to six months’ salary. The employee or candidate who feels discriminated against, for example, during a job application or by his or her dismissal, only has to prove a presumption of discrimination. Case law takes into account the chronology of the facts. It will then be up to the employer to prove that the decision to dismiss or not to hire was taken on non-discriminatory grounds.

Nevertheless, this change is not entirely new. Both national CBA no. 38 on the recruitment and selection of employees and national CBA no. 95 on equal treatment during all phases of the employment relationship already apply the protected criterion of ‘medical history’. However, unlike the Anti-Discrimination Act, these collective bargaining agreements do not provide for compensation for the victim of discrimination.

Concretely, in the Anti-Discrimination Act, the words ‘current or future state of health’ will be replaced by the phrase ‘state of health’, so that a past state of health is also covered. This will also put an end to the ambiguity that existed on this topic and the differing interpretations in case law and legal doctrine.

It is worth noting that a distinction based on an individual’s state of health is not prohibited in all circumstances. As long as the employer can justify the difference in treatment on the basis of a legitimate aim and demonstrate that the means of achieving that aim are necessary, there is no discrimination.

Action point

Through an amendment to the Anti-Discrimination Act, it is now not only forbidden to discriminate on the basis of an employee’s or candidate’s current or future state of health, but also on the basis of his or her medical history. An employer who cannot justify discrimination based on the state of health will face the risk of having to pay compensation of six months’ salary to the discrimination victim.