Discrimination: a practical case to follow up with the latest legislative improvements

1. Fictive situation

Astou, a female Belgian national who was born in Senegal is employed as a project manager. Occasionally, she suffers from painful period cramps. For that reason, she is usually absent two or three days a month and provides a medical certificate to her employer. She is also the happy mother of a girl with autism.

In her appraisal, Astou received negative reviews. Her manager wrote that she is not productive enough and that she trails behind her colleagues in terms of work done and achieved numbers. It is unclear whether this is linked to her health.

Astou filed a complaint for discrimination regarding this appraisal to the HR central service of the employer for she considers that her lower productivity is only due to her few days of absence every month. She evaluates that, when at work, she works as efficiently as the others.

Regardless of the complaint, the employer decides to fire her based on this negative appraisal.

The day before, a colleague – John – informed her that he had heard their manager saying that, anyway, Astou would be far too busy with her disabled child and that working for the company at the same time would have not been compatible. John accepted to give his statement if necessary. Astou added this element to her complaint.

2. Discriminatory issues

2.1. Discrimination directly related to Astou

By firing Astou based on Astou’s absences as described above, the employer does infringe the anti-discrimination legislation.

Firstly, because firing Astou based on her appraisal and her lack of productivity could be deemed as discriminatory if there is a direct link with the aforementioned reasons. Indeed, an intersectional discrimination could be identified in Astou’s situation. Such concept was added recently in Belgian Anti-discrimination law and is defined as the “situation that arises when a person is discriminated against as a result of a distinction based on several protected criteria which interact and become indissociable”. In the current situation, Astou is discriminated against based on both health and sex grounds. These discriminations are intertwined and cannot be considered separately. On the one hand, a woman that has painless periods will not be discriminated as Astou is. On the other hand, her health situation – that leads her to be absent every month for a few days – is a situation only a specific sex can suffer from. No person borne as a man could suffer from the same health situation. Hence, only taking into account a discrimination based on a health characteristic might fall short to apprehend the full picture. These two grounds are inextricably and indissociably linked.

The concept of intersectionality in law is not yet crystal clear and the way this concept of intersectionality will be applied by the courts in the context of the anti-discrimination legislation is not yet known. However, to identify an intersectional discrimination, it is important to identify whether different discrimination criteria interact and become inseparable through interaction with a particular context, making one person more vulnerable than others in the same context.

Intersectional discrimination is different from cumulative discrimination. The notion of cumulative discrimination was also recently introduced in the law (such concept had however already been identified in case-law). A cumulative discrimination is the “situation that arises when a person is discriminated against as a result of a distinction based on several protected criteria that add up but can be dissociated”. Although the dividing line between the two concepts is a bit blurred, the difference with intersectional discriminations is that the different discriminations must not necessarily be linked. One does not influence the other and vice-versa.

For example, if Astou's employer had added that he disliked her Senegalese accent and that he would no longer endure it, this would be a cumulative discrimination, since it not specifically linked to her other conditions. Another Senegalese person, man, or woman, with the same accent would have been discriminated equally. It is a factor independent from the two others (health and sex).

It is important to underline that, from a practical point of view, it does not seem that the difference between intersectional and cumulative discrimination will have an impact. The consequences in terms of sanctions does not seem to differ. The characterisation of several discriminations as intersectional or as cumulative seems thus merely theoretical.

Secondly, because firing Astou based on her negative appraisal is unlawful. Indeed, following a complaint for discrimination, the employer cannot take any measure detrimental to the employee for grounds linked to the complaint or its content. The last part of the sentence, linked to the content of the complaint, has been newly added. It means that, even though Astou’s appraisal is negative and tends to show poor performances, Astou’s employer cannot rely on the appraisal to justify the dismissal or any detrimental measure for Astou filed a complaint linked to that appraisal. Henceforth, any document part of the complaint cannot be used to justify a detrimental measure towards the employee.

2.2. Discrimination not directly related to Astou

Additionally, another form of discrimination, also recently codified in Belgian Anti-discrimination law, can be identified in this fictive case. The employer of Astou was overheard by John, a colleague, saying that firing Astou would be a good thing. According to the employer, Astou would probably spend too much time anyway taking care of her disabled daughter and that this would have had an influence on her working time for the company. Such statement can be categorized as discrimination by association. Astou is associated with the protected criterium of disability by her employer considering her daughter has a disability. As a result, Astou is discriminated against based on her close relationship with someone protected by a certain discrimination ground and the anti-discrimination laws in general.

Discrimination by association must also be distinguished from discrimination by assumption. The latter implies that a person is disadvantaged in relation to others because of the assumption that this person holds a certain protected criterium while this might not at all be the case. A straightforward example would be that Astou also volunteers for an LGBTQIA+ organisation in her free time and that her employer fires her because he assumes that her volunteering for such organisation must imply that she also is part of said community.

The codification of the aforementioned types of discrimination provides for a much broader scope with regards to Belgian anti-discrimination law and ensures that Belgian legislation is harmonised with European case law.

2.3. John benefits a certain protection

To battle the so-called ‘bystander effect’ and to encourage witnesses to testify, report or offer help in a situation of discrimination, the reviewed legislation provides in a witness/bystander protection against dismissal or retaliation. Before the amendment, protection could only be granted after the employer or service provider received a dated and signed complaint of discrimination send by registered letter. Only people who testified in writing following the investigation of a complaint were protected. Now, a more profound protection mechanism has been implemented.

Anybody who reports (orally or in writing), witnesses, testifies (orally or in writing) or is a whistleblower in a situation of discrimination will have the possibility to be protect against any sort of retaliation as well as dismissal. Protection will be granted if the person can substantiate that the employer had knowledge or could reasonably have known that the person reported, provided a witness statement, or offered help with regards to a discrimination complaint. The protection will last up to 12 months.

Looking at the fictive situation, John has provided a witness testimony regarding the statements made by the employer about Astou’s disabled child. In this case, and if the employer had knowledge or could reasonably have known that John provided said testimony, John could ask for witness protection against dismissal and retaliation.  

2.4. Possible consequences for the employer

(a) Astou has thus been dismissed and she started legal proceedings to challenge the regularity of her dismissal. Among others, she aims to receive an indemnity for discriminatory dismissal.

In terms of sanctions, the recently adopted acts brought a few changes without modifying the essence of the mechanisms.

Astou can now ask that her indemnity for discriminatory dismissal takes into account all the discriminatory grounds that played a role. Indeed, in the event of intersectional discrimination, it is possible to cumulate as much lump-sum indemnities as discriminatory grounds. The same cumulation mechanism applies to cumulative discriminations.

If the intersectional discrimination is recognised, Astou can claim an indemnity equivalent to 12 months of remuneration. As a small reminder, in the context of an employment relationship, the lump-sum indemnities amount that an employee can claim is equivalent to 6 months of remuneration.  Hence, Astou’s claim that there is an intersectional discrimination based on two grounds (health and sex), she can thus ask to cumulate two indemnities. Besides, if the discrimination by association is recognised, Astou could possibly claim an additional indemnity of 6 months. The legal disposition is however not clear on how intersectional discrimination and cumulative discrimination interact in the same situation.

The court will rule on the opportunity for addition of the indemnities. The cumulation is indeed not granted nor automatic. Hence, although Astou can claim cumulated indemnities, she will need to convince the court of the opportunity of doing so.

Lastly, if an employer were to violate the protection granted to a witness or a person who reported or offered help in relation to a discrimination complaint, another indemnity of 6 months' pay could be imposed by the court.

(b) Let us change the fictive situation and consider that Astou is not dismissed and received instead an official warning from the employer. She has thus started legal proceedings to obtain an injunction to cease the discrimination.

The president of the court, dealing with this type of proceedings, has, since the new acts, more extensive powers to order side measures.

First, the Court’s president can now impose positive actions. He can order positive measures aimed at preventing that similar discriminations occur again in the future.

Second, the president can more easily impose the publication of his judgement in which he ruled that there is a discrimination. Previously, such measure was only possible if the publication could contribute to putting an end to the discrimination or its effects. Such condition has now been deleted.

3. Conclusion

It appears that the two recent acts modifying the legislation pertaining anti-discrimination did not modify in depth the anti-discrimination mechanisms. They sharpen the existing mechanism, including 2 positive measures in the fight again discrimination (i) allowing more situations to fall under its scope by broadening the protection to new types of discrimination and (ii) improving the remedies in the event of discrimination.

For you, as an employer vigilant on discriminations, it will be particularly important to be aware of the new forms of discrimination and to take these forms into account in the management of your employees. Indeed, with the possibility to cumulate the indemnities, the sanctions for discrimination may lead to significant sanctions.