The definition of discrimination

• Author: Ouhnaoui, Hania; Bribosia, Emmanuelle; Navasartian, Areg; Rorive, Isabelle
• Pages: 21-47

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2 THE DEFINITION OF DISCRIMINATION

2.1 Grounds of unlawful discrimination explicitly covered

The grounds of discrimination explicitly prohibited in the main legislation transposing the

two EU anti-discrimination directives (as listed in the Introduction) are:

- presumed race, colour, descent, national or ethnic origin, nationality (Racial Equality

Federal Act);

- age, sexual orientation, civil status, birth, property (‘fortune’, in French), religious or

philosophical belief, actual or future state of health, disability, physical or genetic

characteristic, political opinion, language, social origin, trade union opinion (General

Anti-Discrimination Federal Act);

- gender and related grounds: pregnancy, childbirth, maternity, gender reassignment,

gender identity and gender expression (Gender Equality Federal Act).

At the level of the regions and communities, the same grounds are covered with some

terminological differences chiefly relating to the Gender Equality Federal Act. The grounds

specified in Directives 2000/43/EC and 2000/78/EC are always expressly mentioned (see

details in the Introduction to this report).

2.1.1 Definition of the grounds of unlawful discrimination within the directives

None of the grounds mentioned in the Racial Equality and Employment Equality Directives

which were implemented in the Belgian legislation were provided with a definition when

the implementation took place. These definitions were considered unnecessary, as these

concepts – in the context at least of an act prohibiting discrimination – were seen as self-

explanatory. Generally speaking, neither the grounds covered by the Racial Equality and

the Employment Equality Directives, nor the additional grounds to which the General Anti-

Discrimination Federal Act applies, are defined in other parts of national legislation.

The website of Unia provides some indication of the meaning of the terms, but chiefly relies

on broad definitions based on the usual sense of the discrimination grounds.57

a) Racial or ethnic origin

The concepts of presumed race and ethnic origin are not defined in Belgian anti-

discrimination law. However, it is worth noting that, in its 2013 annual report, Unia focused

on racism and on various approaches to it (historical, legal, socio-scientific).58

In Unia’s 2015 socio-economic monitoring report, which highlights the stratification of the

labour market according to the origin and the migratory history of people, both terms are

defined as follows:

- the term ‘origin’ combines the nationality of the person, nationality at birth of the

person and nationality at birth of the person’s parents;

- the term ‘migratory history’ combines the nationality of the person, nationality at

birth of the person, nationality at birth of the person’s parents, country of birth,

country of birth of the person’s grandparents (only when the persons are of Belgian

nationality, are born in Belgium from parents who were Belgian at the moment of the

57 www.unia.be/en.

58 Unia (2014) Annual report of Unia 2013 (Discrimination – Diversité), pp. 14-31, available on its website

www.unia.be/en.

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birth), date of registering at the national register and date of acquisition of

nationality.59

No reference is made to membership of a national minority in the federal anti-

discrimination legislation, although it would have been justified by reference to the list of

prohibited grounds of discrimination in Article 21 of the EU Charter of Fundamental Rights.

In practice, due to the very specific treatment of linguistic minorities in Belgium, the

inclusion of ‘membership of a national minority’ in the anti-discrimination legislation would

have been very tricky and the legislature decided to avoid these difficulties by not

mentioning it as such.

Belgian case law does not interpret the terms ‘presumed race’ and ‘ethnic origin’

separately. Belgian courts do not draw a clear distinction between the two terms;

sometimes they use both of them, and sometimes only one of them without any real

consistency.60 Occasionally the courts just refer to the pertinent legal provisions without

quoting the grounds themselves.61 There are no recognised ethnic minorities in Belgium,

which would benefit by having a special legal status. Minority language could be recognised

as a part of ethnicity but discrimination on the grounds of language as such is dealt with

separately in Belgian anti-discrimination law and is not under the responsibility of Unia

because of the tense relationships between the French-speaking and Dutch-speaking

communities. In Belgium, the use of French or Dutch in political life, but also in art, culture,

education, etc. is of highly symbolic significance and can give rise to serious political

tensions.

In its 2016 and 2017 annual reports, Unia focused on the increase of racism and

discrimination related to the post-terrorist climate we are living in.62 It also pointed out the

significant increase of hate speech on social media.63

b) Religion and belief

Religion and belief are not defined in the anti-discrimination legislation.

In 2017, Unia published a report concerning discrimination based on religious belief, linked

to the consequences of the terrorist attacks. The report shows a rise in anxiety vis-a-vis

the Muslim community in Belgium and more broadly people of North African origin.64 This

situation leads to more discriminatory behaviour being reported to Unia, especially

discrimination against Muslim women wearing the hijab. In its 2018 annual report, Unia

noted that ‘Current events relating to the ground of religion and belief have focused mainly

on the wearing of the hijab’.65

59 Inter-federal Centre for Equal Opportunities (Unia) (2015) Socio-Economic Monitoring - Labour Market and

Origin, Federal Public Service on Employment, Labour and Social Dialogue, Brussels, November 2015, pp.

19-20, www.unia.be/en.

60 See: Court of first instance (Correctionele rechtbank) of Antwerp, judgment no. 2009/4737 of 22 October

2009; Court of Appeal (Hof van Beroep) of Antwerp, judgment no. 2009/1837 of 25 February 2009; Court

of Appeal (Cour d’appel) of Mons, judgment of 13 January 2010; Criminal Court (Tribunal

correctionnel/Correctionele rechtbank) Dendermonde, judgment no. F.D. 35.98.16/05 AF of 7 February

2014; and Court of Appeal (Hof van Beroep) of Brussels, judgment of 10 February 2015. www.unia.be/en.

61 See Court of first instance of Brussels (Criminal section) (Tribunal correctionnel de Bruxelles), judgment no.

BR 43.IN.101194/06 of 26 February 2014, www.unia.be/en.

62 Unia (2017) Annual report for 2016, p. 19 and Unia (2018), Annual report for 2017, pp. 58-59, both

available on its website, www.unia.be/en.

63 Unia (2018), Annual report for 2017, pp. 53-57, available on its website, www.unia.be/en.

64 Unia (2017), Mesures et climat: conséquences post-attentats, June 2017, www.unia.be/en.

65 Unia (2019), Annual Report for 2018 (Reconnect with human rights), pp. 71-75, available on the website,

www.Unia.be/en.