On 28 February 2020, the amended Gender Act was published in the Belgian State Gazette. This modification introduces six new grounds for discrimination: paternity, co-motherhood, adoption, medically assisted reproduction, gender characteristics and breastfeeding. From now on, a difference in treatment based on one of these criteria may constitute gender discrimination.
The Gender Act of 2007 prohibits any and all forms of gender discrimination including in employment relations. This ban on discrimination applies throughout the entire employment relationship, ranging from the recruitment decision, the awarding of promotions or any pay rise to the decision to dismiss.
Until now, a direct distinction (i.e. a situation in which one person is treated less favourably than another in a comparable situation) had already been treated as a direct distinction based on gender on the following grounds: pregnancy, childbirth, maternity, gender change and gender identity or gender expression.
Now this list has been supplemented with six additional grounds for protection: paternity, co-motherhood, adoption, medically assisted reproduction, gender characteristics and breastfeeding. In this way, the legislator’s intention, among others, is to send out a signal that men have an equal place in the family and that fathers nowadays perform caring duties just as much as mothers do.
After this expansion, situations such as the following will fall under the prohibition in the Gender Act: a female employee who is fired because she is undergoing IVF treatment, an employee who is not eligible for promotion because he recently took birth leave, a female applicant who is not recruited because she announces that she wants to take breastfeeding breaks.
Direct distinctions based on the Gender Act criteria can only be justified by essential and decisive professional requirements. In concrete terms, this means that an employee who feels unjustifiably treated less favourably than his or her colleagues based on the Gender Act criteria can claim to be the victim of gender discrimination. This comes at a price for the employer: an employee who is discriminated against is entitled to six months’ gross salary. The Gender Act also provides for a reversal of the burden of proof: when an employee brings forward facts that may suggest the existence of discrimination, it is up to the employer in turn to prove that no discrimination has taken place.
Make sure that workplace decisions that involve a difference in treatment are never connected to one of the protected criteria under the Gender Act. To this end, it is important that employers have sufficient other elements to support their decisions (such as negative assessment reports, warnings, etc.). In the context of dismissal, employers must also ensure that they do not include any reference to protected criteria under the Gender Act in documents such as the letter of dismissal, the C4 form (unemployment certificate provided on the last day of work) or the reasons for dismissal that must be provided within the meaning of CBA 109.