The Belgian Constitution guarantees the equality of Belgian citizens and the equality between men and women. It also guarantees the exercise of the rights and freedoms for all Belgian citizens without any discrimination. This also covers the rights and freedoms of the ideological and philosophical minorities.
Protections Against Harassment
The protected criteria are the following: a) 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. b) Gender Act: sex, including pregnancy, giving birth, maternity, breastfeeding, fatherhood, adoption, medically assisted reproduction (IVF), sex change and gender identity, gender expression and gender characteristics. c) Racism Act: nationality, a so-called race, colour of skin, social background and national or ethnic origin.
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 following motives: a) 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. b) 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.
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.
There is a well-defined procedure which has to be followed for installing an affirmative action through a collective bargaining agreement or an accession instrument. In any case, there should be an information and consultation procedure with the workers or with the workers’ representatives. This instrument has not yet proved to be popular in practice. However, several other measures constituting affirmative actions are set out in acts and regulations in order to address specific discrimination towards women, disabled people, young employees and homosexuals. Furthermore, a law was voted on in 2012 to reduce the salary gap between men and women. The main idea is to make the salary gap more visible and transparent in order to allow the Social Partners to negotiate and decrease the gap. In view of this, certain measures have been taken (for example, the drafting of an analysis report on the remuneration structure at company level and a gender test for the functions’ classification at industry level).