Direct discrimination? Indirect discrimination? What is the difference and who is protected in the Netherlands? Last week, a court in The Hague ruled in favour of a family who sued their school after the school scheduled the class photo on Eid al-Adha (Offerfeest). The court found that the school had indirectly discriminated against the students.
Equal Treatment Act
Issues of discrimination in the Netherlands are covered by the Algemene Wet Gelijke Behandeling or Equal Treatment Act. This framework is derived from a directive put forth by the European Union, which guarantees protections for people on the basis of religion, personal beliefs, political opinion, race, sex, nationality, sexual orientation and civil status.
It’s not only schools that are covered under this framework, but also employers, service providers, government agencies and other organisations.
Direct & indirect discrimination
Both direct and indirect discrimination is forbidden. A company, for example, cannot publish a job posting which says that only Dutch applicants will be considered. That would be considered direct discrimination.
In the case of the family, the court ruled the school had indirectly discriminated against them. Indirect discrimination is often more complicated to prove. Indirect discrimination would be when there is a neutral policy, but that policy is applied in a discriminatory manner.
That same company cannot publish a job posting saying that only fluent Dutch speakers will be considered for the role either. Such a demand would be seen as discrimination against one’s nationality since most people who speak Dutch have the Dutch nationality. By requiring Dutch fluency, the company is indirectly discriminating against people from other nationalities.
However, such a job posting will not always be considered discrimination. Whilst it’s always illegal for an employer to say non-Dutch applicants will not be considered, it may be permitted to require Dutch language skills if the company can show that the Dutch language is required for the position in question.
In another case recently in the news, the European Court of Justice issued guidelines around a neutral workplace policy after a company in Belgium fired a woman for refusing to adhere to a company ban on the wearing of religious symbols.
The company successfully argued that its rule was applied neutrally, as symbols of all religions were forbidden, and that it was important for the company to appear neutral to its clients, making a case for allowing the indirect discrimination.
In the Netherlands, there is a separate council that deals with incidences of discrimination. This council, however, cannot levy fines or award damages, so complainants often take their case to the civil court. The civil court can award damages and take other actions.
The bottom line is that, in the Netherlands, the protected groups mentioned in the Equal Treatment Act must be accommodated when providing services. However, this accommodation is not limitless.
Companies, schools, government agencies and other organisations may engage in indirect discrimination if they can show that there is a need for this. Decisions are made on a case by case basis by the court.
Update article: December 2017
Daniëlle van den Heuvel works in property law and employment law at GMW lawyers.
Within property law, Daniëlle is mainly involved in rental disputes and procedures concerning real estate transactions, representing real estate entrepreneurs, project developers, housing corporations and private individuals. Within her employment law practice, Daniëlle is often called in to draw up or advise about settlement agreements between employers and employees. She represents both parties.
Empathetic and dedicated to giving the best possible service, Daniëlle combines a responsive attitude with a clear, analytical and personal approach. In every case, Daniëlle tries to make a difference and really help her client.
Daniëlle also gives regular advice on non-competition clauses, and publishes monthly in the legal magazine Rendement.