Expansion of Belgium’s anti-discrimination legislation

Belgium’s anti-discrimination legislation was recently expanded. The Belgian legislator now recognises multiple discrimination and discrimination by association and assumption, codifying key European case-law.

On 20 July 2023, a legislative amendment was published in the Belgian State Gazette that significantly expands Belgium’s federal anti-discrimination legislation, both in terms of its material scope, as well as in terms of the sanctions that can be imposed by a court upon finding discrimination.

With this amendment, the Belgian legislator for the first time explicitly recognises the concept of multiple discrimination. The new law specifically takes into account two forms of multiple discrimination, namely cumulative discrimination (discrimination based on multiple protected criteria that are compounded but remain separable) and intersectional discrimination (discrimination based on multiple protected criteria that interact and become inseparable), and foresees that victims of multiple discrimination always benefit from the most favourable justification system. As an example of multiple discrimination, the explanatory memorandum refers to the refusal to hire women with a different ethnic or migration background and young children.

The explicit recognition of intersectional discrimination by the Belgian legislator, in particular, constitutes a significant expansion of the existing legal protection against discrimination. As this form of discrimination captures instances where several protected criteria are combined which, individually, do not establish discrimination in a specific situation, its recognition means that additional situations could henceforth legally be considered discriminatory. With this amendment, the Belgian legislator goes beyond the case-law of the Court of Justice of the European Union, which so far considered that intersectional discrimination, as opposed to cumulative discrimination, is not covered by EU law (C-443/15, Parris, 24 November 2016). To some extent, the Belgian legislator hereby anticipates the new EU Pay Transparency Directive, in which the EU legislator also for the first time explicitly recognises intersectional discrimination and which needs to be transposed by 2026.

Furthermore, the legislative amendment expands the anti-discrimination framework by adding discrimination by association (discrimination against someone who is associated with a person who possesses a protected characteristic) and discrimination by assumption (discrimination based on the assumption that the victim possesses a protected criterion). These forms of discrimination occur, for example, when a person is discriminated against because they are deemed to have a particular sexual orientation due to their involvement in an LGBTIQ-organisation or for being the parent of a disabled child. This expansion codifies existing case-law of the Court of Justice of the European Union (C‑303/06, Coleman, 17 July 2008) and of the European Court of Human Rights (25536/14, Skorjanec, 28 March 2017).

Additionally, the legislator reformulates three existing discrimination grounds. Discrimination based on “sexual preference” becomes discrimination based on “sexual orientation” in the Dutch text (the French version of the legal text already appropriately reflects the legislator’s intention and thus does not need adapting), and discrimination based on social origin, “or condition” is added in order to take into account, for example, the situation of homeless people. Discrimination based on “gender reassignment” is replaced by the words “medical or social transition”.

The new law, moreover, broadens the sanctions that can be imposed by a court upon finding discrimination. In the case of multiple discrimination at work, a judge can now impose the lump-sum damages provided in the case of workplace discrimination, being 6 months’ gross salary, several times according to the number of protected criteria violated. In the case of discrimination outside employment, on the other hand, the fixed damages are tripled and indexed annually. The legislative amendment also expands the possibility of ordering and publishing a court injunction.

Employers in Belgium should take these new developments into account in shaping and implementing HR policies. In particular, to prevent discrimination and promote equality, it is advisable to adopt an intersectional approach in the company’s diversity and inclusion policy.

Didier Houttequiet, Attorney – Associate Claeys & Engels