Protection under Dutch law against Discrimination in the Workplace

Explore how Dutch employment law protects employees from discrimination in the workplace.

As a Dutch employment lawyer, I believe in creating a work environment that values diversity, fosters inclusivity, and upholds the principles of equality. Discrimination in the workplace is strictly prohibited by Dutch law, yet employees still encounter discriminatory behavior from supervisors and colleagues far too often. As an employer, it is your responsibility to protect your employees and ensure that discrimination has no place in your organization. In this article, I will discuss the various aspects of discrimination in the workplace, provide examples, explore relevant legislation, discuss the consequences of discrimination, and offer practical tips on how to prevent discrimination.

Understanding Discrimination in the Workplace

The term "discrimination" refers to the act of making distinctions. However, in legal and societal contexts, it carries a negative connotation, representing the unfair treatment of individuals or groups based on certain characteristics. In the Netherlands, more than 27% of the population reports experiencing discrimination, with severe consequences such as students dropping out of school, job seekers giving up on finding work, and employees feeling less safe due to discrimination in the workplace.

Discrimination in the workplace is explicitly prohibited by Article 1 of the Dutch Constitution, and it is further elaborated upon in numerous other laws. To provide you with a better understanding, let's explore some examples of discrimination in the workplace.

Examples of Discrimination in the Workplace

Discrimination in the workplace can manifest in various forms, ranging from subtle jokes and harassment to outright exclusion based on race, religion, age, or gender. Let's examine five common examples of workplace discrimination:

1. Discrimination Based on Sexual Orientation

Homosexual individuals often face discriminatory remarks about their sexual orientation. While some comments may be intended as jokes, they can be offensive and hurtful to many. It is crucial as an employer to ensure that no distinction is made based on sexual orientation and that all employees feel comfortable and respected in the workplace.

2. Discrimination Due to Pregnancy

Discrimination against pregnant women in the workplace remains a prevalent issue and acts as a barrier to the employment opportunities of women. A significant study conducted by the College for the Rights of Man shows that 45% of pregnant working women and young mothers experience some form of discrimination related to their pregnancy. This discrimination may involve not extending contracts or extending them under less favorable conditions, reneging on promised promotions or salary increases, demoting women to lower positions, or even terminating their employment, even if they have a permanent contract.

It is important to note that if one of your employees is pregnant, she has the right to schedule pregnancy check-ups during working hours. During these appointments, you must continue paying her salary for the duration of the examination and the travel time, as mandated by the Working Hours Act.

3. Discrimination Based on Race

Discrimination based on race often manifests during the hiring process, with individuals of non-Western backgrounds having a lower chance of being invited for interviews. Research conducted by the Netherlands Institute for Social Research and Cultural Research (SCP) has shown that native Dutch individuals have 1.5 to 1.8 times more chances of being invited for an interview compared to individuals of Hindustani and Moroccan descent. Moreover, employees with a non-Western background frequently experience discrimination in the form of teasing, comments, and jokes within the workplace.

4. Discrimination Based on Gender

As an employer, you should ensure that both men and women receive equal treatment in the workplace, including equal compensation. However, a report by the European Commission indicates that women in the Netherlands earn approximately 17% less than their male counterparts in equivalent positions. Equal treatment based on gender is not only a legal obligation but also a vital step towards creating a fair and inclusive work environment.

5. Discrimination Based on Age

Some employers may exhibit a preference for younger workers during the recruitment process, either due to lower labor costs or the perception that younger individuals can handle the job better. However, age discrimination during recruitment is generally prohibited unless there is a valid reason justifying the distinction. It is essential to understand the regulations concerning age discrimination to avoid inadvertently engaging in discriminatory practices.

These examples represent only a fraction of the possible forms of discrimination in the workplace. Other forms include discrimination based on religion, political or philosophical beliefs, disabilities or illnesses, marital status, nationality, and differences in employment contracts or durations.

Dutch Legislation Addressing Discrimination

The prohibition of discrimination is enshrined in Article 1 of the Dutch Constitution, which states that "All individuals in the Netherlands shall be treated equally in equal situations. Discrimination on the grounds of religion, belief, political opinion, race, gender, or any other grounds whatsoever shall not be permitted."

To further enforce this principle of equal treatment, several specific laws have been enacted, including the General Equal Treatment Act (AWGB), which serves as the primary legislation in combating discrimination. Derived from the AWGB are additional laws such as the Equal Treatment of Men and Women Act (WGB), the Equal Treatment Act for People with Disabilities and Chronic Illnesses (WGBH/CZ), the Equal Treatment Act Based on Age (WGBL), the Distinction of Working Hours Act, and the Distinction of Fixed and Indefinite Time Act.

The prohibition of discrimination based on gender in the workplace is also addressed in Articles 7:646 to 7:649 of the Dutch Civil Code, while the criminalization of discrimination is included in the Dutch Penal Code.

Consequences under Dutch law of Discrimination in the Workplace

Discrimination within your organization can have severe consequences for both individuals and the overall work environment. It can lead to a toxic atmosphere that hampers productivity and employee well-being. Moreover, discriminated employees may seek legal recourse, which can result in financial and reputational damage to your company.

In the event of discrimination, an affected employee can choose to file a complaint with the College for the Rights of Man or take legal action. The College conducts free investigations into discrimination claims, and its findings often carry significant weight in court proceedings. Additionally, the government has imposed stricter regulations on employers regarding discrimination in the workplace. Since 2008, discrimination has been listed in the Working Conditions Act as a form of psychosocial work stress, which requires employers to analyze the risks of discrimination and, if necessary, develop a prevention plan. Non-compliance with these regulations can result in penalties imposed by the Labor Inspectorate.

Preventing Discrimination in Your Workplace

As a Dutch employment attorney, I believe that prevention is the key to combating discrimination in the workplace. Here are tips for employers to create a discrimination-free work environment:

1. Be Vigilant and Responsive

Maintain an open ear and eye for signs of potential discrimination, such as gossip, harassment, or insensitive jokes. Make it clear to your employees that you are attentive to these issues and that they can approach you if they encounter any problems.

2. Appoint a Confidential Contact Person

Consider appointing an internal or external confidential contact person who can serve as a reliable point of contact in case of discrimination. Having a designated contact person helps employees feel safe and provides a clear channel for reporting discrimination. It also fulfills legal obligations under the Working Conditions Act, which mandates employers to provide a safe working environment.

3. Lead by Example

Set a positive example by not tolerating or laughing at jokes or comments that are derogatory towards women, ethnic minorities, or any other protected group. Instead, use such situations as an opportunity to initiate open discussions and promote inclusivity.

4. Develop a Code of Conduct

Create a code of conduct that explicitly outlines the rules regarding discrimination within your company. Distribute the code among your employees to ensure everyone is aware of the expected behavior. Regularly monitor compliance with the code, such as during performance reviews or employee satisfaction surveys.

5. Take Discrimination Complaints Seriously

Take all discrimination complaints from employees seriously. Address the alleged perpetrators, and if necessary, advise the victims to file a formal complaint. Support your employees throughout the process. If a complaint is lodged against you as the employer, take steps to prevent escalating conflicts and consider involving a mediator to help find a resolution.

6. Be Mindful During Recruitment

Avoid making discriminatory distinctions based on gender, age, religion, race, sexual orientation, or nationality during the recruitment and selection process. Familiarize yourself with the rules governing personnel advertisements and selection procedures to prevent unintentional discrimination.

Conclusion

Discrimination has no place in any modern workplace. As an employer, it is your responsibility to actively prevent and address discrimination in all its forms. By understanding the legislation, recognizing the examples of discrimination, and implementing the preventive measures outlined in this article, you can foster a work environment that respects diversity, upholds equality, and promotes the well-being and success of all your employees.

Disclaimer: This article is provided for informational purposes only and does not constitute legal advice. For specific guidance on your situation, I recommend consulting with a qualified professional.