To mark 10 years since their establishment, Unia took a critical look at the antidiscrimination and antiracism law in Belgium and published a report with 27 recommendations. In brief, Unia concludes that the laws are insufficient for certain victims and do not always have enough impact. The report was written based on Unia’s experience with some 17,000 cases. The current laws have now been in place for 10 years.
Unia emphasises that for the most part, there is nothing wrong with the antidiscrimination laws. Not all countries in the EU have as extensive a legal framework as Belgium does. The Belgian legislation includes no fewer than 19 protected criteria, while the EU directives refer to just six criteria. There is also praise for the greater leeway for application of the law than prescribed by Europe. In addition, the fixed compensation of six months’ pay for discrimination on the employment market is also positive,’ Unia director Els Keytsman points out.
However, Unia is calling attention to the unsatisfactory implementation of certain provisions of the law as well as insufficient protection for certain victims.
Better protection for victims
Thus, Unia is of the opinion that there should be higher fixed damages for victims. Although significant damages are awarded for discrimination on the employment market, that is not the case for discrimination in other areas. ‘The law currently provides for fixed damages of 1,300 euros. That is barely enough to cover the legal costs. As a result, victims are not motivated to press charges,’ she explains. On a related note, Unia wants to draw attention to i.a. access to justice, which is discussed in the first part of the report.
**Higher penalties for multiple offences
For cases of hateful motives or multiple offences, Unia is also calling for greater penalties than are currently stipulated by the Criminal Code. The antidiscrimination laws provide a list of offences for which a higher penalty can be ordered, if the offence is motivated by hate (morally repugnant motive). But since certain offences have not yet been included on this list, those perpetrators cannot currently be given an increased penalty.
‘Currently, if a gay man is blackmailed or robbed because of his sexual orientation, the perpetrator cannot be given a more severe penalty on the grounds of the crime being motivated by hate,’ Keytsman illustrates.
**Broaden the concept of ‘health status’
Unia is also calling for an expansion of the criterium of health status. ‘Currently, the law refers only to a person’s present or future health. Yet we receive reports of people being fired from their jobs because they were too frequently ill in the past.’
In addition, there are reservations about the fact that practical tests are not explicitly mentioned in the antidiscrimination laws. Keytsman clarifies: ‘Many discrimination charges come to nothing because there is no proof, despite the potential to shift the burden of proof in a civil case. This means that the antidiscrimination law often falls short of the intended effect.’
Practical tests are a tried-and-tested way of gathering evidence of discrimination, she continued. ‘Because the law does not explicitly mention them, such tests remain on shaky legal ground. Perpetrators of discrimination can currently claim that evidence against them cannot be used in court because it was unlawfully obtained (entrapment).’
At the moment, affirmative action is possible only in theory. ‘The antidiscrimination law refers to affirmative action as a possible way to address discrimination, but does not specify what form this could take. If companies choose to intentionally hire people from disadvantaged groups, they are effectively discriminating. Unia wants to see this change’, added Keytsman.
The following publications by our members and partners that touch upon the topic of antidiscrimination laws may be of interest:
- Celebrating Ten Years of Anti-Discrimination Law in Germany (2016)
On 27 September 2016, our German colleagues at the Federal Anti-Discrimination Agency (FADA) celebrated their tenth anniversary, together with the ten years of the German General Equal Treatment Act (AGG) in Berlin, the evaluation of which you can find here.
- The Sanctions Regime in Discrimination Cases and its Effects – An Equinet Paper (2015)
This study aims to identify different types of sanctions as a tool for fostering the implementation of the principles of equal treatment and non-discrimination. A specific focus is given to the (potential) role of equality bodies in strengthening effectiveness, proportionality and dissuasiveness of sanctions’ regimes.
- Positive Action Measures. The Experience of Equality Bodies – An Equinet Report (2014)
This report summarises 24 country reports from Equality Bodies and subsequently discusses the complex legal issues relating to the application of positive action. It takes into account concrete cases, good practice examples and examples of problematic provisions. The report starts off with a historical overview of affirmative action measures in the United States, and, among other things, goes on to set out the legal framework for positive action measures in the EU Equal Treatment Directives.