Discrimination laws updated with new compensation rules - Update

At a glance

• *Update* This act was approved by Parliament on 22nd June 2023, however it was not published in the Official Journal until 20 July 2023.

• As there is no specific article within the act stating when this will come into force, the default position will be held, meaning it will be come into force on 31 July 2023 (ten days after its publication in the Official Journal).

The Belgian Act of 5 May 2007 combatting certain forms of discrimination, states that Parliament should evaluate the application and efficiency of discrimination law every five years. In the framework of this five-year cycle, on 22 June 2023 Parliament approved a draft Act, which was published in the Official Journal on 20 July 2023, amending:

• The Act of 30 July 1981 aimed at punishing certain acts motivated by racism or xenophobia;
• The Act of 10 May 2007 combatting certain forms of discrimination; and
• The Act of 10 May 2007 combatting certain forms of discrimination between men and women.

The Belgian legislation on discrimination consists of three separate Acts, each with their own protected criteria.

The protected criteria under the Act of 30 July 1981 are “nationality, race, skin colour, descent or national or ethnic origin.”

The protected criteria under the Discrimination Act of 10 May 2007 are “age, sexual orientation, civil status, birth, fortune, belief or conviction, political opinion, trade union opinion, language, health, disability, physical or genetic characteristic or social origin.”

The protected criteria under the Gender Act of 10 May 2007 are “gender, pregnancy, medically assisted procreation, birth, breast feeding, maternity, family responsibility, gender identity, gender expression, sexual characteristics and change of gender.”

Discrimination is often based on several protected criteria and there is no specific legislation on this point. The Belgian legislator now recognises multiple, associative and presumed discrimination, thus codifying European case law. The concept of multiple discrimination has been recognised for the first time, in the form of cumulative discrimination and intersectional discrimination.  

An example of cumulative discrimination under the Acts, would be an employer sending an email with the message “no foreigners, no workers without experience and no women with young children” to a recruitment agency. An example of intersectional discrimination would be a hotel systematically refusing access to women of Asian descent, as the discrimination combines two criteria (Asian men and women of different descent were allowed).

The new law also further expands the substantive scope of application of federal anti-discrimination law by explicitly adding two more forms of discrimination to the legal framework on discrimination: discrimination by association and discrimination based on a presumption that a victim possesses a protected criterion. Discrimination by association is where you discriminate against someone who is associated with a person with a protected characteristic, by they do not themselves posses this characteristic.

In the field of employment relationships, a victim of discrimination can claim compensation for the actual prejudice (which requires submitting evidence confirming the precise amount of the actual prejudice), or they can claim a lump sum compensation of six months’ pay (which does not require any evidence of the prejudice).

For either cumulative or intersectional discrimination, employment tribunals can now combine the lump sum compensation for each of the protected criterion involved. If it is established that there was discrimination both on the basis of gender and ethnic origin for example, an employment tribunal could grant compensation of 12 months' pay.

The new legislation doesn’t include any criteria indicating when the lump sum compensations should be cumulated and when they shouldn’t. It therefore remains to be seen how the case law will evolve.