CMS Expert Guide on discrimination in the workplace in Belgium

• The anti-discrimination law of 10 May 2007 forbids direct and indirect discrimination on the basis of the protected criteria. 
• The gender law of 10 May 2007 forbids direct and indirect discrimination based on the protected criterium.
• The racism and xenophobia law of 30 July 1981 forbids direct and indirect discrimination based on the protected criteria.
• The non-discrimination of part time workers law of 5 March 2002 forbids less favourable treatment in terms of working conditions based on the protected criteria.
• The non-discrimination of workers with an employment contract of definite duration law of 5 June 2002 forbids less favourable treatment in terms of working conditions based on the protected criteria.
• CBA n° 95 regarding equal treatment forbids every form of discrimination (i.e. difference in treatment) based on the protected criteria.

(i) Regarding the protected criteria

The above-mentioned dispositions each aim to combat discrimination on the basis of different criteria. Together, they combat discrimination based on the following criteria:

• age;
• gender;
• sexual orientation;
• status;
• past, actual and future medical/health status;
• race, colour of skin, descent or national or ethnic origin;
• political or philosophical convictions;
• wealth;
• disability;
• religion and conviction; 
• physical or genetical characteristics; 
• temporary or partial work situations/schedules; 
• membership of a trade union or other organisation.

(ii) Regarding the scope of the protection

The above-mentioned dispositions each have their own scope of application, and therefore each apply to different types of situations or employment relationships.

The Anti-discrimination Law of 10 May 2007 prohibits discrimination on the basis of 13 different criteria. In Belgium, this law is the anti-discrimination disposition with the largest number of different protected criteria. This is also the anti-discrimination disposition with the broadest scope of application. The scope of application exceeds the domain of labour law. However, from a labour law perspective, it applies to all types of employment relationships (white- and blue-collar workers, full- and part-time workers) and the entire employment process (i.e. all stages of the creation, existence and termination of the employment relationship). The gender law and the racism and xenophobia law each protect select criteria, but also apply to all types of employment relationships and to the entire employment process.

The other dispositions have a more limited scopes of application. The laws of 5 March 2002 and 5 June 2002, for example, give special protection to part-time workers and to workers hired for an indefinite period.

Different types of remedies are available for a potential victim of discrimination at the workplace, such as: 

1. Filing a complaintAn employee/candidate who believes they have been discriminated may – after, where appropriate, informal attempts to discuss the matter with their employer – file an informal or formal complaint in order to seek external assistance. Such a complaint can be filed to an institution protecting the concerned interests (e.g. the Institute for the Equality of Women and Men, UNIA, etc), the internal or external prevention advisor of the company, the Labour Inspection (S.P.F. Emploi/FOD WASO) or the Labour Auditor's office.An employer who is presented with a complaint regarding a violation of the legal provisions on discrimination may not take any prejudicial measure (e.g. change of working conditions, terminate the employment contract, etc) against the person who has lodged the complaint, except for reasons unrelated to the complaint. However, for this protection measure to be effective, the complaint must be made respecting certain conditions.
2. Taking action in cessationThe laws of 10 May 2007 have specifically provided for the possibility for the victim of discrimination to take action before the President of the Labour Court in order to obtain an order – subject to a fine if necessary – to cease acts that violate the various prohibitions of discrimination.
3. Claiming compensationThe victim of discrimination in the employment relationship can claim compensation for the damage suffered, either as a lump sum (i.e. six months of gross remuneration) or on the basis of the damage actually suffered.

There are no policy or training measures that employers must take to help prevent discrimination in the workplace. However, there is a general obligation for each employer to promote health and safety and prevent any discrimination. 

Employers are under no legal obligation to introduce a D&I policy or neutrality policy within their company. 

Employers who wish to implement a neutrality policy, which aims to provide for equal treatment and a neutral work environment, must be very careful in the drafting of such policies. 

In Belgium, it has been necessary since 2012 for the social balance sheet included in a company's annual accounts to be broken down by gender. 

The social balance sheet includes information on the number of hours worked, personnel costs and benefits granted in addition to salary. However, this information alone is insufficient to detect wage inequality effectively and at the moment there are no other legal obligations in this regard for employers in Belgium.

To tackle this issue, the European Commission presented in March 2021 a legislative proposal for a directive to strengthen the application of the principle of equal pay for men and women for equal work or work of equal value, through pay transparency and enforcement mechanisms. Under this legislative proposal, employers with at least 50 to 250 employees (this figure will be debated by lawmakers) would be required to report their gender pay gap and conduct a pay review if the gap exceeds 2.5% to 5% (this figure will also be debated) and cannot be justified. Moreover, job seekers would have the right to obtain information on the pay range of positions they apply for, and employees would have the right to request from their employer gender-disaggregated information on the average pay of other workers doing the same work or work of equal value. 

In April 2022, the European Parliament approved its position on the proposal and the start of inter-institutional negotiations. 

The European legislative process is still in its early stages. Therefore, it is not yet clear, which obligations will arise from this for the member states.

Other than the EU's General Data Protection Regulation (GDPR) rules and requirements (e.g. conducting a data protection impact assessment (DPIA), assessing necessity and proportionality, identifying and assessing risks for employees), there are no specific data protection rules under Belgian law affect the processing and retention of diversity data.

In Belgium, the board of directors of listed companies must be composed at least one-third of members of a different gender from the other members. This obligation does not apply to unlisted companies nor to other corporate bodies, such as the executive committee.

At the European Union level, a directive is about to be adopted that is expected to require listed companies in EU member states to grant women at least 40% of non-executive seats on their boards or at least 33% of executive and non-executive seats by mid-2026.

The Belgian corporate governance code of 2020 provides that the board of directors must pursue sustainable value creation through effective, responsible and ethical leadership. In pursuing sustainable value creation, the board must develop an inclusive approach.

Under this code, when renewing management, the latter must also ensure that any appointment or reappointment preserves a good balance of diversity on the board of directors and its committees. The code therefore sets out a broader diversity obligation than provided for under Belgian law (while not imposing quotas) since it includes not only gender diversity, but diversity in general and not only for the board but also for the committees.

This corporate governance code is binding for listed companies as well as for non-listed companies that voluntarily comply with it. However, companies have the flexibility to deviate from the code. When they do not apply the corporate governance code in full, the annual report of the board must contain an indication of the parts of the corporate governance code from which it derogates and the justified reasons for this derogation.