Exceptions

• Author: Ouhnaoui, Hania; Bribosia, Emmanuelle; Navasartian, Areg; Rorive, Isabelle
• Pages: 67-85

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4 EXCEPTIONS

4.1 Genuine and determining occupational requirements (Article 4)

In Belgium (federal level), the General Anti-Discrimination Federal Act and the Racial

Equality Federal Act provide for an exception for genuine and determining occupational

requirements (Article 8). To the extent that no exhaustive list of such requirements is

specified, it is left to the judge to decide, on a case-by-case basis, whether the conditions

are satisfied in order for the exception to apply. It remains debatable whether this is a fully

satisfactory solution. However, the federal Government is authorised to adopt a royal

decree providing a list of examples in order to offer guidance to courts.249 In its 2017

report, the Expert Commission for the Assessment of the 2007 Anti-Discrimination Federal

Acts suggests that consideration be given to the opportunity to adopt one or several royal

decrees providing such a list.250

The instruments adopted by the regions and communities contain similar provisions that

are in line with the EU requirements.251

There is very little case law on the question of genuine and determining occupational

requirements.

In respect of age discrimination, on 26 September 2017, a proceeding for annulment was

initiated before the Belgian Council of State252 against a refusal to appoint a candidate for

a position at the Brussels Regional Agency for Public Cleanliness because of his age. A

regulation provides that 35 is the maximum age to apply for this position. This condition

does not apply to workers hired by the Regional Agency for Cleanliness before they were

35. The claimant, who is older, asserts that fixing the maximum age of 35 for candidates

to apply for a position of worker for public cleanliness cannot constitute a genuine

occupational requirement and is, therefore, direct discrimination based on age, prohibited

by the former Brussels Civil Service ET Ordinance (Articles 4(6) and 7 to 10). According to

the Council of State, this condition is not illegal and is appropriate and necessary to

guarantee the legitimate objective that the position can be fulfilled for a certain amount of

time by newly appointed workers. Indeed, the Council of State considered that, since the

position requires excellent physical health, it is likely that people of a certain age could no

longer fulfil the essential requirements of the work at stake. The Council of State also

underlined that, in this matter, its control is only a marginal one (standard of abuse of

authority): it is only competent to censure, on appeal, any manifest error of assessment

which a public authority may have committed. According to the ruling of the Council of

State, ‘in the present case, the public authority had discretion in fixing that age and the

fact that it chose the age of 35 appears to be objective and reasonable. Although the

applicant questions the relevance of that choice, he does not, however, show how that

decision would be manifestly unreasonable in the light of the specific characteristics of the

post concerned’ (our translation). The proceeding for annulment was rejected.

249 Recital 18 of the Preamble of the Racial Equality Directive and Recital 23 of the Preamble of the Employment

Equality Directive state that ‘In very limited circumstances, a difference of treatment may be justified where

a characteristic related to religion or belief, disability, age or sexual orientation constitutes a genuine and

determining occupational requirement, when the objective is legitimate, and the requirement is

proportionate. Such circumstances should be included in the information provided by the Member States to

the Commission’ (on the requirement that the Member States report to the European Commission, see

Article 18 of the Framework Directive ). This last sentence suggests that the notion of ‘genuine and

determining occupational requirement’ should not be left to a case-by-case identification under judicial

control, but should be given a precise definition beforehand, such situations being described by the Member

State as part of the reporting requirements of the implementation of the Framework Directive. The

implementation of Article 6 of the Flemish Framework ET Decree shows that the requirement to identify with

precision, ex ante, the occupational requirements, which fall within the exceptions of Article 4 of the Racial

Equality Directive and of Article 4(1) of the Framework Directive, is achievable.

250 Commission d’évaluation de la législation fédérale relative à la lutte contre les discriminations (2017),

Premier rapport d’évaluation 2017, p. 46 and para. 107, www.unia.be/en.

251 See, for instance, Article 7(2) of the Walloon ET Decree.

252 Belgian Council of State, case no. 239.217, 26 September 2017, www.raadvst-consetat.be/?lang=fr.

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As to the ground of disability (or presumed disability), in a case ruled in 2013, the President

of the Bruges Labour Court253 stated that an employer could not disadvantage an employee

based on a physical or genetic characteristic and/or a presumed disability in order to

respond to the needs and preferences of colleagues and/or customers. According to the

court, this kind of direct distinction could neither be considered as a genuine and

determining occupational requirement, nor as a positive action, nor as a difference in

treatment imposed by, or by virtue of, legislation. In the case in question, the applicant

who had syndactyly (a congenital hand malformation) was not hired under a permanent

contract because, according to his employer, his congenital hand deformities would not

have been presentable for customers and would have prevented him from fully assuming

his job.

Also of relevance is the 2016 judgment of the Liège Labour Tribunal convicting a driving

school for discrimination against an obese applicant (see section 2.1.1 above).254 The

tribunal examined the question whether the weight of the applicant amounted to a genuine

and determining occupational requirement that justified the difference of treatment. The

tribunal judged that it could not be seen as such, given the function at hand and despite

the safety reasons offered by the defendant. Moreover, according to the tribunal, even

though not being obese could constitute a genuine and determining occupational

requirement, a reasonable accommodation could have been put in place, which the

defendant failed to do.

4.2 Employers with an ethos based on religion or belief (Article4(2) Directive

2000/78)

In Belgium (federal level), the General Anti-Discrimination Federal Act contains a provision

(Article 13), which follows almost word-for-word Article 4(2) of the Employment Equality

Directive. Without prejudging its interpretation by the courts, it should therefore in

principle be seen as compatible with the directive.

Most of the communities/regions have introduced the exception provided in Article 4(2) of

Directive 2000/78/EC as drafted at the federal level (German-speaking Community,

Walloon Region, French Community, Flemish Community/Region but with a less precise

formulation, nevertheless in line with the EU requirements). Neither the decrees of the

Cocof of 22 March 2007 and 9 July 2010, nor the Brussels ET ordinances contain any clause

relating to the exception provided in Article 4(2) of Directive 2000/78/EC.

Although the concept of an employer with an ethos based on religion or belief is not

expressly referred to, some decisions relating to the prohibition of religious symbols at

work in the name of neutrality are worth discussing here. They illustrate the blurred lines

between direct and indirect discrimination as well as between a genuine and determining

occupational requirement (Article 4(1) of Directive 2000/78/EC) and the exception for

employers with an ethos based on religion or belief (Article 4(2) of Directive 2000/78/EC).

The first case is the Hema case decided by the Tongres Labour Court in January 2013.255

The Hema store (belonging to the Dutch discount retail chain) in Genk (Flanders)256 had

forbidden a Muslim employee who wore a headscarf from working with customers after

some had complained. At the beginning of her employment, the Muslim employee was told

that the wearing of a headscarf was acceptable, and she was even provided with a Hema

headscarf as worn by staff in the Netherlands. However, after receiving many negative

reactions from customers, the company asked the Muslim employee to stop wearing her

253 Judgment no. 12/2552/A and no. 12/2596/A of 10 December 2013 of the President of the Labour Court

(Arbeidsrechtbank) of Bruges (Flanders).

254 Labour Tribunal of Liège, 20 June 2016, www.unia.be/en.

255 Labour Court (Arbeidsrechtbank) of Tongres (Flanders), 2 January 2013, Joyce V. O. D. B. v. R. B. NV and

H. B. BVBA, judgment no. A.R. 11/2142/A, available on the website of the Centre, www.Unia.be/en/.

256 Genk is a much smaller town than Ghent, which is also mentioned in the report.