The definition of discrimination

• Author: Karin de Vries
• Pages: 16-35

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2THE DEFINITION OF DISCRIMINATION

2.1Grounds of unlawful discrimination explicitly covered

The following grounds of discrimination are explicitly prohibited in the main legislation

transposing the two EU anti-discrimination directives:

sex (including pregnancy, sex characteristics, gender identity and gender expression),

religion orbelief,34political opinion, race, nationality, sexual orientation,35 civil (marital)

status, age and disability or chronic disease.

2.1.1Definition of the grounds of unlawful discrimination within the directives

The words racial or ethnic origin, religion or belief, disability, age and sexual orientation

are not defined in Dutch equal treatment law. Dutch equal treatment legislation applies

symmetrically, in the sense that people from both the dominant group and the

disadvantaged group are covered. However, as grounds of discrimination have to be

interpreted in concrete cases, some indications about the definition of grounds can be

derived from case law.

a)Racial or ethnic origin

The Explanatory Memorandum to the GETA36stresses that ‘race’ is a broad concept, which

must be interpreted in line with the UN International Convention on the Elimination of

Racial Discrimination (ICERD).37 The concept embraces race, colour, descent and national

or ethnic origin.38 The Supreme Court, as well as the NIHR, uses the ICERD definition of

race. In the EC Implementation Act of 2004, the Government has not deemed it necessary

to explicitly include the notion of ‘ethnic origin’, since this is sufficiently captured by this

interpretation of ‘race’.39 The NIHR uses as a yardstickwhether the applicant belongs to ‘a

coherent group with collective physical, ethnic, geographical or cultural characteristics and

which distinguishes itself from other groups by common features or a common

behaviour’.40Sometimes, however, it is difficult to draw the line between race, ethnicity

and religion.41 If all three grounds were protected in the same sense (as far as the personal

and material scope of the legislation is concerned and the exceptions to the non-

discrimination ground are similar for each of these grounds), that would be no problem.

However, this is not the case in the Dutch legal system (where race iscovered more broadly

than religion). Another discussion concerns the exact borderline between ‘race / ethnicity’

34The Dutch terms are ‘godsdienst en levensovertuiging’, which would translate more closely as ‘religion and

philosophical conviction’ rather than ‘religion or belief’. As it definitely encompasses ‘religion and belief’ as

envisaged in EU law the latter terminology is used in this report to avoid confusion.

35 The Dutch terms used are ‘homo- or heterosexual orientation’ instead of sexual orientation for short. This

terminology was adopted at the time when the GETA came into being in 1994 to make it clear that

paedosexual orientation is not regarded as a protected ground. As it covers the same grounds as the

terminology ‘sexual orientation’ under EU law this report uses the latter to avoid confusion.

36 Explanatory Memorandum to the GETA, Tweede Kamer, 1990-1991, 22 014, no. 3 (Memorie van Toelichting

bij de Algemene Wet Gelijke Behandeling).

37 International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) of 21 December

1965.

38 Explanatory Memorandum to the GETA, Tweede Kamer, 1990-1991, 22 014, no. 3, p. 13. It should be noted

that the notion of ‘national origin’ only embraces nationality in an ethnic sense. Nationality in a civic sense is

covered by the non-discrimination ground of nationality.

39 Explanatory Memorandum to the EC Implementation Act, Tweede Kamer, 2002-2003, 28 770, no. 3, p. 3.

See also Gerards, J. H. and Heringa, A. W. (2003), Wetgeving gelijke behandeling (Equal treatment

legislation), Deventer, Kluwer, pp. 28-30.

40 See, for example, ETC 1997-119 and 1998-57.

41 In line with the interpretation by e.g. the European Court of Human Rights discrimination against Jews is put

on a par with discrimination on grounds of race. Discrimination against Muslims is not approached in a

similar way.

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and nationality (which is also covered under the GETA).42 In cases concerning hate speech

and insults against a group (see Introduction) the Supreme Court accepted that the ground

‘race’ covers references to nationality and immigration status (e.g. ‘Surinamese’,

‘Moroccans’ and ‘asylum seekers’).43 In line with this case law, politician Geert Wilders was

found guilty in 2016 of incitement to racial discrimination against ‘Moroccans’.44The appeal

against the verdict is still pending.

In general, both Dutch courts and the NIHR tend to interpret the definition of ‘race’ as

referring to particular characteristics (e.g. colour, national origin or culture) rather than as

a category resulting from processes of racialisation.45

b)Religion or belief

Religion is also not defined in the Constitution, in the GETA or anywhere else in the equal

treatment legislation. In the Netherlands the term ‘belief’ is not used. In the Explanatory

Memorandum to the EC Implementation Act, the Government has made it clear that it

wishes to continue using the term‘philosophy of life’ (levensovertuiging),rather than to

introduce the term belief (geloof),the term used by Directive 2000/78/EC. According to

the Government, there is no material difference between these two terms.46‘Religion or

belief' is interpreted in a broad sense. In cases that come before the NIHR and the courts

(including cases concerning the freedom of religion), the Institute and the judges use a

wide definition of religion and belief. The only restriction to the scope of the concept is that

it should exceed a mere personal conviction or expression.47 On the other hand, it is not

necessary that all believers of a certain religion adhere to a certain conviction (e.g. the

wearing of headscarves by women).48 Finally, it is also established in case law that the

right not to be discriminated against on the ground of religion incorporates boththe right

to have religious beliefs or to adhere to a certain philosophy of life and the right to act in

accordance with that religion or belief.49 Since political opinion is also protected, no sharp

line between belief and political opinion needs to be drawn. The interpretation of all of

these terms is strongly inspired by the case law of the European Court of Human Rights

(ECtHR) and other international institutions (e.g. the UN Human Rights Committee).

c)Disability

Dutch equality law does not define disability, as the Government has deemed it

unnecessary and undesirable to do so.50 However, unlike the Employment Equality

Directive, the DDA expressly mentions ‘chronic disease’ as a ground alongside‘disability’.

With regard to the definition, some guidelines can be derived from the travaux

préparatoires of the DDA and the cases of the then ETC (now the NIHR). Criteria mentioned

during the preparation of the Law were, amongst others, the long duration of the disability

42 See, for example, ETC 2011-97 and 2011-98, especially the note to both cases by A. Böcker and S.

Dursum-Aksel, to be found in Foster, C. J. et al. (eds.) (2012), Oordelenbundel 2011 (‘NIHR Opinions

2011’). Nijmegen, Wolf Legal Publishers, pp. 453-464.

43 E.g. Supreme Court 16 April 1996, ECLI:NL:PHR:1996:AD2525; Supreme Court 26 June 2012,

ECLI:NL:HR:2012:BW9189.

44 District Court of The Hague 9 December 2016 (Wilders case) ECLI:NL:RBDHA:2016:15014 (in Dutch)

https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBDHA:2016:15014. Summary in English:

www.rechtspraak.nl/Organisatie-en-contact/Organisatie/Rechtbanken/Rechtbank-Den-

Haag/Nieuws/Paginas/Wilders-found-guilty-of-insultment-of-a-group-and-incitement-to-discrimination.aspx.

45 E.g. Supreme Court 20 March 2016, ECLI:NL:HR:2016:510; NIHR 23 December 2019, 2019-135.

46 Since the government does not seem to see a difference in meaning, we have translated levensovertuiging

as ‘belief’ in this report. The NIHR, in the English translation of the GETA on its website, also translates

‘levensovertuiging’ as ‘belief’.

47 See, for example, ETC 2007-207.

48 See, for example, ETC 2008-12.

49 See, for example, ETC 1997-46, 2004-112 and 2004-148, as well as the Explanatory Memorandum to the

GETA, Tweede Kamer, 1990-1991, 22 014, no. 3, p. 39-40. And, similarly, Memorandum in Response to the

GETA, 1990-1991, 22 014, no. 5, p. 39-40 (Memorie van Antwoord bij de Algemene Wet Gelijke

Behandeling).

50 Explanatory Memorandum to theDDA,Tweede Kamer, 2001-2002, 28 169, no. 3, p. 9.