Belgium updates Gender Discrimination Act: additional characteristics can give rise to direct discrimination

On 28 February 2020, an amendment to Belgium’s 2007 Gender Discrimination Act was published in the Belgian State Gazette and will become applicable on 9 March 2020.

Under the Act, treating someone differently because of their gender – whether directly or indirectly – is considered discriminatory and hence prohibited.

In addition, it also amounts to direct gender discrimination if someone is treated differently based on the protected characteristics of pregnancy, childbirth, maternity, gender change, gender identity and gender expression.

In the employment field, the Act covers the entire employment relationship, ie from the start of the recruitment process to termination.

Employers can only justify direct differences in treatment because of gender (including because of one of the above-mentioned characteristics) if they can demonstrate the job had an essential and decisive occupational requirement. If an employer fails to do so, they could be fined up to six months’ remuneration (or higher if the employee can demonstrate they have suffered higher damages).

The newly published amendment to the Act extends the list of protected characteristics to paternity, co-motherhood, breastfeeding, gender characteristics, adoption and medically assisted reproduction. This means that treating someone differently because of one of these protected characteristics will also amount to direct gender discrimination.

This development reflects the legislator’s intention to better protect fathers and to ensure the law adapts to changing societal norms.

The amendments to the Act do not impact the mechanism of indirect gender discrimination, ie a situation whereby an apparently neutral provision, criterion or practice disadvantages someone based on their gender. Indirect discrimination can be justified but only if it aims to achieve a legitimate outcome via appropriate and necessary means.