New law targets ‘intersectional’ and ‘multiple’ discrimination

On 20 July 2023, an amendment to the law was published in the Belgian State Gazette that significantly expands anti-discrimination legislation, both in terms of its material scope and in terms of the sanctions that can be imposed by a court.

With this legislative amendment, the Belgian legislator explicitly recognises the concept of ‘multiple’ discrimination for the first time. The new law recognises two forms of multiple discrimination: cumulative discrimination (i.e. discrimination based on multiple protected characteristics that coincide but remain separable); and intersectional discrimination (i.e. discrimination based on multiple protected characteristics that interact and become inseparable).

The explicit recognition of intersectional discrimination is a significant extension of the existing legal protections against discrimination. The addition of this form of discrimination, which only exists where someone has more than one protected characteristic and where, in the specific situation at hand, consideration of the characteristics individually would not show discrimination, represents a significant broadening of the material scope of anti-discrimination law.

As an example of multiple discrimination, the explanatory memorandum refers to the case of a person who sent his CV via the VDAB website to an ambulance company which was seeking an ambulance driver. The applicant, of Belgian nationality, mentioned his surname and place of birth, which indicated that he was of Eastern European origin. The company manager thought she was sending a reply to a VDAB employee, but in reality her response landed with the applicant: ‘Foreigner, 22 years old, no experience, so unnecessary to send me this. No foreigners, no people without experience and no women with young children… already doomed to failure’. In this case, (single) racial discrimination was recognised. If the person who sent the CV had been a woman of foreign origin with young children, the refusal to hire her would have been multiple discrimination as she would have combined several protected criteria.

In addition, the new law provides that in cases of multiple discrimination, the most stringent conditions that could allow for a derogation from the prohibition of discrimination will always prevail. Consequently, a person who is the subject of a difference in treatment based on at least two criteria will always be subject to the more favourable justification system.

Further, the new law further expands the substantive scope of application of federal anti-discrimination law by explicitly adding two more forms of discrimination to the legal framework: discrimination by association (i.e. discrimination against someone who is associated with a person with a protected characteristic but does not themselves possess that characteristic) and discrimination by assumption (i.e. discrimination based on the assumption that the victim possesses a protected characteristic). This means that the law now covers situations where a person is discriminated against because they are assumed to have a particular sexual orientation because of their involvement in an LGBTQI+ organisation, or because they are the parent of a child with a disability. This measure codifies decisions of the European Court of Justice (C‑303/06, Coleman, 17 July 2008) and the European Court of Human Rights (25536/14, Skorjanec, 28 March 2017).

The new law also reformulates three existing protected characteristics. Discrimination based on ‘sexual preference’ becomes discrimination based on ‘sexual orientation’ in the Dutch-language text (the French version did not need adapting), and discrimination based on social origin, ‘or condition’ is added in order to take into account, for example, the situation of homeless people. Discrimination based on ‘gender reassignment’ has been replaced by the discrimination based on ‘medical or social transition’.

In addition to broadening the material scope of discrimination law, the new law also increases the sanctions that can be imposed by a court upon a finding of discrimination. Where multiple discrimination is concerned, there is now the possibility of cumulating the flat-rate damages provided for under the law. This means that from now on, a judge can impose the lump-sum damages provided in the case of workplace discrimination (i.e. 6 months’ gross salary) several times according to the number of protected criteria violated. By doing so, the legislator confirms a judgment of the labour court of Antwerp. In the case of discrimination outside the employment relationship, the fixed damages are tripled and indexed annually. Finally, the legislative amendment also extends the possibility of imposing a cease-and-desist order. In the case of a cease-and-desist order, a judge can now also impose positive measures, such as implementing a diversity policy to prevent the recurrence of discrimination and can always require the publication of the order. Previously, a judge could only impose publication if it could help stop the challenged act or their effects.

With the explicit recognition of intersectional discrimination by the Belgian legislator, employers in Belgium should take this form of discrimination into account in their general HR policies. Moreover, to prevent discrimination, it is also advisable to include intersectionality in the company’s diversity policy, especially now that the legislator has once again tightened the sanctions in cases where discrimination is found.