Equal treatment has yet to become fully embedded in the Netherlands. Although it is an essential part in the practice of law, neither employers nor employees always grasp the full impact that equal treatment has on their arrangements or actions. In this article, the authors will describe how equal treatment in the Netherlands actually works on a practical level.
Sources of equal treatment
Dutch equal treatment law has European roots. The European equal treatment legislation has been set forth in several European directives and is implemented in various Dutch laws. Currently, the Netherlands has the Equal Treatment Act, the Equal Treatment of Men and Women Act, the Equal Treatment Based on Handicap and Chronic Diseases Act, the Equal Treatment Based on Age in Employment Act and several articles in the Dutch Civil Code on equal treatment.
The current main ethos behind equal treatment laws is that making indirect and direct ‘distinction’ (ie treating someone in a different way from others) based on a defined discriminatory element is not allowed, unless there is an objective justification. Direct distinction involves a straight link to one of the forbidden discriminatory grounds. Indirect distinction occurs when an apparently neutral arrangement or treatment results in a distinction on forbidden grounds.
On 31 January 2008, the European Commission informed the Netherlands that the Dutch equal treatment legislation had not been implemented correctly. Therefore, the so-called Integration Act has been drafted to solve the problem. The Integration Act also aims to improve accessibility to equal treatment by combining the various relevant laws.
Besides this consolidation, there are also a few differences in the content of equal treatment law. The main difference from the current equal treatment laws is that the Integration Act uses the term ‘discrimination’ instead of ‘distinction’, although this will not result in a material change to the term ‘distinction’. Furthermore, some terms are adjusted in accordance with the European legislation. The draft Integration Act is mainly a technical integration of the equal treatment laws rather than a material change to these laws. The cabinet is currently reviewing the outcome of the online consultation on the draft Integration Act. We expect to hear more on this subject during the course of 2012.
Various grounds of equal treatment
The European legislation states that discrimination as such is prohibited, after which several examples are given, such as sex, race, colour, language and religion. Dutch law does not prohibit discrimination ‘on any ground whatsoever’, but only distinction on the grounds that are specifically mentioned in the various laws on equal treatment. Distinction on any other ground is therefore not prohibited by law. We will further explain various Dutch equal treatment laws below.
Equal Treatment Act
The Equal Treatment Act states that direct and indirect distinction between persons is prohibited when the distinction is based on religion, beliefs, political preferences, race, gender, nationality, sexual orientation or marital status. Distinction based on pregnancy, childbirth or maternity is regarded as a distinction based on gender.
Equal Treatment of Men and Women Act
The Equal Treatment of Men and Women Act prohibits direct or indirect distinction based on gender. Indirect distinction on gender is only allowed when there is an objective justification, including a legitimate goal, and the means to achieve that goal are fitting and necessary. Direct distinction based on gender is never allowed and includes intimidation and sexual harassment. Intimidation is defined as behaviour relating to gender that results in the infringement of that person and creates a threatening, hostile, insulting, humiliating or hurtful environment. Sexual harassment is defined as any form of verbal, non-verbal or physical behaviour with a sexual connotation that aims for, or results in, the infringement of that person and creates a threatening, hostile, insulting, humiliating or hurtful environment. Violating clauses are null and void.
Equal Treatment Based on Handicap and Chronic Diseases Act
The Equal Treatment Based on Handicap and Chronic Diseases Act refers to the definitions of ‘distinction’ and ‘indirect distinction’ given in the Equal Treatment Act. The terms ‘handicap’ and ‘chronic disease’ are not defined: the Dutch government feels that a comprehensive definition is neither needed nor desirable because the limitations are determined by circumstances and not specific characteristics of a person. The unique aspect of this Act is that it also obliges employers to provide for effective measures to create a level playing field where possible, unless this would be a disproportionate burden for them.
The Act also protects against distinction in relation to a person that does not have the handicap or chronic disease, for example the employee who is the parent of a disabled child. If distinction is made on that basis, this employee can invoke the protection of the Act. This also applies to a distinction based on the incorrect assumption that a ‘handicap’ or ‘chronic disease’ is present, for example if an employer wrongly thinks that an employee has AIDS. In other words, the actual presence of the ‘handicap’ or ‘chronic disease’ is not required for the Act to apply.
The Equal Treatment Based on Age in Employment Act
The Equal Treatment Based on Age in Employment Act is specifically meant for distinction based on age or based on other grounds that lead to age discrimination. This Act is different from most other equal treatment acts, because it is the only equal treatment act that allows direct distinction based on age, provided that there is an objective justification for this distinction. The other equal treatment acts do not allow ‘direct distinction’. The Act is also different because the characteristic ‘age’ differs from, for example, gender or race, because everyone is young at some point and will get older. The Act not only protects elderly people but also young people from distinction. The prohibition of age distinction applies to all the different phases in employment. Job advertisements that make an age distinction and criteria based on age during the selection of job applicants will very often be prohibited. The conditions of employment and promotion must also be free of unjustified distinction based on age.
Dutch Civil Code
The Dutch Civil Code also contains provisions that prohibit distinction in employment. These provisions prohibit the employer from making a distinction based on sex, pregnancy, childbirth, motherhood, marital status and family circumstances. Again, the distinction is prohibited when entering into an employment contract, offering training, employment conditions, promotion and when terminating the employment contract. Under certain circumstances, indirect distinction is allowed, but the provisions in the Dutch Civil Code have specific rules when it comes to justification of indirect distinction. In certain cases, distinction that aims at (i) protecting women during pregnancy or motherhood or (ii) eliminating disadvantages for women is allowed.
Employers are also prohibited from making a distinction in the conditions of employment based on the working hours of employees when (i) entering into the employment contract, (ii) preceding the employment contract and (iii) terminating the employment contract, unless the distinction is objectively justified. Although pro rata provisions are possible, the employer has to offer the same amount of training to part-time workers.
The Equal Treatment Commission can examine an alleged violation of equal treatment laws on request or of its own accord and will announce its view to the applicant and the alleged violator. The Commission’s rulings are not legally binding so employers are not bound to act on the Commission’s ruling. However, if the employee starts court proceedings based on a ruling by the Commission, the employee will certainly have a strong position in the court proceedings. It is not obliged to request the Commission’s view before addressing the court, so employees can also address the court directly. The court’s decision is of course binding, unlike the Commission’s ruling. Another difference between proceeding before the court and the Commission is that the court can also include obligations based on ‘good employment practices’ when judging the alleged prohibited distinction.
From 2012, the Commission will be incorporated in a national human rights institution called the Human Rights Committee (College voor de Rechten van de Mens), which will act as a watchdog for human rights in the Netherlands. The Human Rights Committee will monitor, investigate, advise and provide information on human rights in the Netherlands.
There is a certain overlap between the various equal treatment acts and the provisions in the Dutch Civil Code. However, the Equal Treatment Act states that it only applies when the provisions in the Dutch Civil Code and the Equal Treatment of Men and Woman Act do not provide for protection in a specific situation. It should be noted that employees who invoke an act, or assist another employee who invokes the protection of the equal treatment acts, are protected from prejudice. For instance the termination of employment will, in most cases, be considered to be void.
As we said at the beginning of this article, equal treatment has a lot to gain in the Netherlands. It would be advisable for employers to make sure that they can explain what the objective justification is for a direct distinction based on age or if one of the other indirect distinctions is made. Such justification should of course be present at the time the distinction is made and not just when an employee requests the justification.
By Linda Nekeman-Ijdema and Pamela Diepen, lawyers, Boekel De Nerée.