Employee discrimination

EMPLOYEE DISCRIMINATION

An employer is not allowed to discriminate against employees and potential employees. Dutch employment law contains several grounds on which basis it is illegal to discriminate for the employer, like age, religion, race and sexual preference.

TWO FORMS OF DISCRIMINATION

There are several ways an employer can make a distinction between people. The first way is direct discrimination. This is not allowed, unless the law makes an exception. Women can be favored in the job selection process in companies that have a preferential policy in order to create a more gender balanced workforce.

More complicated is indirect discrimination. A company can for instance determine that no head cover should be worn. This is not directly aimed at people with certain religious beliefs, but will affect mostly female Muslims. Indirect discrimination is not allowed, unless there is an objective justification for this. There needs to be a legitimate aim of the rule, the rule is suitable to achieve this goal and the rule needs to be an adequate measure for this.

REVERSAL OF THE BURDEN OF PROOF

Dutch employment law contains a reversal of the burden of proof in discrimination cases. This is beneficiary for the employee. The employee just needs to state that he is discriminated and make a plausible case. Subsequently, it is up to the employer to proof that there was no discrimination. Any employer confronted with a discrimination case should therefore be very diligent.

ACTIONS FOR THE EMPLOYEE

An employee has several options if he thinks he is discriminated:

1. File a complaint with the Equal Treatment Commission (Commissie Gelijke Behandeling). These proceedings are accessible for the employee and no attorney is required. The Commission can determine whether there is illegal discrimination, but cannot award damages to the employee.
2. The employee can (for instance if an employment contract is not extended because of pregnancy) request for a higher severance payment (billijke vergoeding) at the Court. The employee should be compensated for the damage incurred by illegally not extending the contract.
3. A last option is to file a request at the Court on the grounds of wrongful act(ions) on behalf of the employer. An employer (or a potential employer, in the event of discrimination in the hiring process) that discriminated can act wrongful and may be liable to the (rejected) employee.