Double Discrimination = Double Compensation. Diversity & Inclusion at the Recruitment Phase
10 December is the international Human Rights Day (adopted by the General Assembly of the United Nations in 1948). With human rights presently in the spotlight, we present a recent Belgian case involving the uniquely fundamental right not to be discriminated against, as protected by Article 7 of the Universal Declaration of Human Rights, as well as many other international norms (including the European Convention of Human rights, the European Social Charter, the EU Charter of Fundamental Rights, ILO Convention no. 111) and the Belgian Constitution. This fundamental right is particularly important in employment relations, including at the recruitment phase.
In the case at hand, a pharmaceutical company had a job vacancy for a Research & Development Assistant. A woman with a master’s degree in bioengineering, who also happened to be hearing impaired, applied for the position. During the first interview, it transpired that she was also pregnant. The company indicated in an e-mail to the applicant that her “deafness is an issue” for them, but that they will look into it. Next, the company offered her a temporary administrative position to test whether a cooperation could succeed, given her hearing impairment (“so they can get used to it”). The applicant refused this offer, as the position was clearly beneath her abilities (given that she had a master’s degree). Consequently, the procedure came to a standstill and after a few months, the company announced that they would not be recruiting the applicant, claiming that they needed to hire someone who was available immediately (whereas the applicant was pregnant). The applicant filed a complaint with Unia (the Belgian anti-discrimination institute) for discrimination on the basis of disability (deafness) and gender (pregnancy), which took the case to the labour court.
In first instance, the Labour Court of Antwerp condemned the company on 29 September 2020, because they believed the employer had discriminated against the applicant, not once, not twice, but three times, awarding three times (3x) the legal lump-sum compensation (i.e. 18 or 3 x 6 months of wages). The first discrimination was based on her handicap and took place during the application procedure. The court stated that the discrimination was evidenced by the fact that the company referred to her impairment as an issue and proposed a different application procedure (the temporary administrative position) than the one used for other applicants. The second discrimination was also based on the handicap, but relates to the decision not to recruit her, while ‘hearing well’ is not an essential and determining occupational requirement for the function (which would be able to justify the decision). The third discrimination was based on gender, as the company did not hire her due to her pregnancy. As said, the company claimed that they needed someone who was immediately available (in reality however, the company only hired someone months later).
Additionally, the Labour Court of Appeal of Antwerp ruled on 28 June 2021, that the company was guilty of discrimination of the job-applicant based on her handicap and her gender. However, unlike the labour court in first instance, the appellate court did not award a triple compensation. Firstly, it is indeed possible to distinguish a discrimination based on two distinct grounds (handicap and gender), as these are protected by different legal norms (respectively the Discrimination Act and the Gender Act). The creation of these laws was parallel and closely intertwined. That does not prevent them from being two separate acts, each dealing with different grounds for discrimination and each providing for a lump sum payment. The company has committed two violations of two different discrimination prohibitions. Nor can the damage be equated. The “end result” of both discriminations was that the applicant was not recruited, but at least the moral damage caused by the two discriminations did not coincide. Each is a different attack on the applicant’s personal integrity. As such, the two lump-sum compensations can be cumulated.
Second, however, the Labour Court of Appeal did not distinguish the discrimination based on handicap during the recruitment procedure and the discrimination based on handicap by the decision not to the hire the applicant. The discriminatory actions are based on the same handicap (deafness), are connected to the same recruitment procedure and are clearly intertwined. In addition, a triple lump-sum compensation would not be disproportional, while a double compensation is sufficient to cause a deterring effect (as is demanded by the EU Directive regarding discrimination in employment relations). The appellate court also feared a counterproductive effect, by awarding two lump-sum compensations for discrimination based on the same handicap, as this could lead to employers immediately deciding to exclude impaired applicants from the recruitment procedure, since this would only lead to a single (one) lump-sum compensation.
As a result, the Labour Court of Appeal merely awarded a double lump-sum compensation, which nevertheless, reflects a full year (12 months) of wages.
In the course of the legal proceedings, the company had set up a diversity and inclusion policy and appointed an HR officer to prevent similar issues in the future. Therefore, the Labour Court of Appeal did not deem it necessary to levy penalty payments in case the company would continue to apply its discriminatory practices.