Promoting diversity and inclusion in the workplace has become a key objective for many companies. While working out such a policy, employers often want to introduce so-called “affirmative action measures”, namely measures seeking to achieve “de facto equality” of a disadvantaged group in the company (such as women, people of foreign origin, etc.), but are reluctant to do so as they fear that their measures will be regarded as discriminatory. However, the Belgian Royal Decree of 11 February 2019 – largely unknown to many employers despite being adopted more than 5 years ago – provides a legal framework for companies to implement such affirmative action measures. While the procedure to comply with is quite ‘heavy’ (since a company CBA or deed of accession will have to be entered into and approved by the Employment Minister), doing so creates legal certainty as employers following this procedure can be reassured that their measures do not constitute discrimination.
What is meant by affirmative action measures
Affirmative action measures are measures taken by an employer that include a differential treatment of employees based on a criterion protected under the anti-discrimination legislation (e.g. sex, age, race, sexual orientation, etc.) to achieve “de facto equality” by “positively discriminating” against the disadvantaged group of employees.
Examples include:
- Priority access to an internship or training
- Guarantees to be called for a job interview
- Favouring a “minority” applicant when competing with another employee with equal skills
- Using a quota
Affirmative action measures should be distinguished from other measures to promote workforce diversity, but do not imply differential treatment between employees, as such measures are always allowed (such as providing training about prejudice and stereotypes to recruitment officers or stating in a job advertisement that women and minorities are particularly encouraged to apply, etc.).
When is affirmative action allowed for employers in Belgium
The Belgian anti-discrimination legislation says that a direct or indirect distinction based on one of the protected criteria does not constitute discrimination if it is based on an affirmative action measure. Therefore, affirmative action is explicitly recognised as a legal justification ground for discrimination, provided that the following four conditions are met:
(i) There must be an apparent inequality;
(ii) The elimination of this inequality should be identified as an objective to be promoted;
(iii) The affirmative action measure must be temporary and must stop once the sought objective has been achieved;
(iv) The affirmative action measure must not unduly restrict other people’s rights.
The anti-discrimination laws further provide that the situations in which and conditions under which an affirmative action measure can be taken must be determined by Royal Decree. Such a Royal Decree was adopted on 11 February 2019.
Based on this Royal Decree of 11 February 2019, an employer seeking to implement affirmative action measures has two options:
- Option 1: The employer enters into a company collective bargaining agreement (CBA) or deed of accession that includes an Affirmative Action Plan that must be approved by the Employment Minister; or
- Option 2: The employer implements affirmative action measures without following any procedure, provided that the four conditions for affirmative action, as laid down in the anti-discrimination laws, are met.
Here are the pros and cons of each option.
- Option 1: the employer enters into an Affirmative Action Plan by CBA or deed of accession
The employer can introduce the affirmative action measures by entering into a company CBA or deed of accession including an Affirmative Action Plan.
A company CBA must be negotiated with at least one union. For affirmative action introduced by a deed of accession, employers must (1) use the mandatory form attached to the Royal Decree and (2) follow a specific procedure similar to the procedure for implementing or modifying the work rules, i.e. communicating the draft deed to the employees in advance and allowing them to make remarks in a specific register to be posted during a 15-day period.
The Affirmative Action Plan, established by a CBA or by a deed of accession, must include the following information:
(i) The proof of the existence of a manifest inequality (by any available means). For example, the employer can use statistics or data-mining to demonstrate an apparent inequality within the company.
(ii) A description of the objective and the practical implementation of the plan. The objective must be well-defined and focused on eliminating or reducing the problems underlying the inequality.
(iii) The plan’s duration, which must be limited to what is necessary to achieve the objective within a maximum period of 3 years.
(iv) Information about the proportionality test conducted to ensure that the contemplated measures are appropriate and necessary regarding the objective to be achieved.
(v) A guarantee that the positive action measure does not unnecessarily restrict the rights of others.
The Affirmative Action Plan must then be submitted for approval to the Employment Minister who will communicate his/her decision within a two-month period.
The main advantage of using option 1 is that it provides legal certainty for employers. Indeed, an Affirmative Action Plan entered into by CBA or deed of accession and approved by the Employment Minister will be legally deemed not to constitute discrimination. The downside of complying with this procedure is that it is quite burdensome.
- Option 2: affirmative action without following the procedure introduced by the Royal Decree of 11 February 2019
Article 9 of the Royal Decree of 11 February 2019 provides that employers can also decide to implement affirmative action measures without following any procedure if the conditions for affirmative action measures, as laid down in the anti-discrimination legislation and as set out above, are met:
(i) There must be an apparent inequality;
(ii) The elimination of this inequality should be identified as an objective to be promoted;
(iii) The affirmative action measure must be temporary and must stop once the sought objective has been reached; and
(iv) The affirmative action measure must not unduly restrict other people’s rights.
Employers can inform the Employment Minister of such an initiative but there is no requirement to do so. The advantage of this option is that employers can avoid the heavy procedure of entering into a CBA or deed of accession and obtaining the Employment Minister’s approval. However, this option’s notable downside is that the employer has no legal certainty about whether the measures may be challenged and whether a court might decide that such measures are an unjustified discrimination.
A few practical examples
To date, only a handful of affirmative action plans have been submitted to the Employment Ministry.
Highlighted below are a few examples of approved Affirmative Action Plans, which can give some guidance:
- A plan to improve gender balance in key leadership positions and decision-making bodies by exclusively addressing women through positive action and providing women with the tools to encourage applying for decision-making positions.
- A plan including the selection and training of a group of refugees and to then help them find electrician-related work in companies within the sector.
- A plan guiding people with a migration background/”newcomers” to find a job/follow training.
