In a judgment of 29 September 2020, the Labour Court in Antwerp ordered a company to pay 18 months' gross salary to a candidate-employee who is deaf and was pregnant when she applied for a job.

As the court ruled that the company discriminated against her three times, it has been ordered to pay three times the fixed compensation (six months) stipulated by law for victims of discrimination in employment matters under the General Anti-Discrimination Act and the Gender Act.

The  candidate claimed discrimination on the following grounds:

-        her disability during the recruitment procedure;

-        her disability with regard to the decision of (non-)recruitment;

-     not been hired for reasons related to her pregnancy, a criterion protected by the Gender Act.

The company appealed against this judgment and the case was brought before the Labour Court of Appeal in Antwerp, that imposed two, rather than three, compensation awards.

The Court of Appeal confirmed that there was discrimination based on disability during the recruitment procedure. With regard to the decision not to recruit the candidate, contrary to the Labour Tribunal, it only imposed one compensation award, based on the interdependence of the recruitment procedure and the subsequent non-recruitment decision and on the fact that no separate damage resulted from the discrimination during the recruitment procedure and the decision.

On the other hand, the  Court of Appeal also confirmed that there was discrimination based on gender and cumulating compensation awards because of discrimination based on disability and gender was possible. The Antidiscrimination Act and the Gender Act should be considered as two separate regulations each providing for a fixed compensation award in the event of discrimination.

Since the alleged violations relate to two different discrimination acts, the Court was entitled to grant cumulative compensation awards.

The Federation of Belgian Enterprises (FEB), the voice of business in Belgium, considers this judgment unbalanced for employers. Moreover, “The Anti-Discrimination Act and the Gender Act are closely intertwined, providing the same protection to all protected criteria in the event of discrimination. Since the end result of the violation of two protected criteria is the same (non-recruitment), the Federation of Belgian Enterprises (VBO FEB) believes that the discriminatory act must be dealt with similarly. The damage of the discriminatory act based on the motives of handicap and gender was the same in comparison with a discriminatory act based on the motive of handicap alone.”

In the face of this decision, employers must pay close attention to the recruitment process and selection criteria, in order to avoid any discrimination and demonstrate the legitimacy of the choices made.

Under Belgian regulations, three federal laws protect people from discrimination, in addition to a variety of laws enacted by Belgium’s territorial Regions and linguistic Communities.

At the federal level, the Racism Law forbids discrimination on the basis of race, color, nationality, descent, and national or ethnic origin. Also, The Gender Law prohibits discrimination based on sex, including discrimination based on pregnancy, childbirth, motherhood, and sex change. Finally, the Anti- Discrimination Law forbids discrimination on the basis of age, sexual orientation, civil status, birth, wealth, faith or personal belief, political orientation, language, current or future health status, handicap, physical or genetic disorder, or social origin.

It should also be noted that both, the Anti-Discrimination and Gender Act state that the employer must prove that there is no discrimination when the alleged victim puts forward facts that give rise to such a suspicion.