Extent of Protection
The protected criteria are the following:
- General Act: Sensitive Criteria: age, sexual orientation, religious and philosophical conviction and handicap; and General Criteria: marital status, birth, wealth, political conviction, syndical conviction, language, current or future health condition, physical or genetic characteristics and social background.
- Gender Act: sex, including pregnancy, giving birth and maternity, sex change and gender identity or gender expression.
- Racism Act: nationality, a so-called race, colour of skin, social background and national or ethnic origin.
Besides the explicitly protected criteria, a victim of discrimination can also revert to the common law liability rules.
Protections against Harassment
A distinction, which should be regarded as discrimination, pursuant to the conditions set out above, could nevertheless be regarded as lawful if it is justified by one of the motives below:
- General grounds: For direct or indirect distinction, regarding all the criteria, except age and religious or philosophical conviction: 1) Measures of affirmative action, provided that certain conditions are met (for an extensive overview of the rules in this respect); 2) A distinction dictated by law which is in conformity with the Constitution, the law of the European Union and international law.
- Specific Grounds (for direct distinction): a) Age: (i) legitimate purpose of the policy in the field of employment, labour market or any other comparable legitimate purpose; and (ii) the means to achieve that purpose are appropriate and necessary; b) Religious or philosophical conviction: the nature of the activities or the context in which they are being performed constitute an essential, legitimate and justifiable professional requirement, given the nature of the organisation (applicable for organisations founded on the basis of a religious or philosophical conviction).
Employer’s Obligation to Provide Reasonable Accommodations
According to Belgian Legislation, employers are obliged to provide all reasonable accommodations that would allow a person with a disability to have access to a job, unless such measures would entail an unreasonable burden for the employer. Since the Belgian antidiscrimination legislation is predominantly a transposition of EU legislation, the case law of the ECJ is crucial for the determination of which accommodations can be deemed reasonable or not.
The employee (victim of discrimination) has a choice between compensation on a lump sum basis and compensation of the actual damage suffered. In the latter case, the employee has to prove the amount of the damage suffered.