A high level outline of the obligations that apply in relation to discrimination and harassment in the Netherlands.
Based on the Civil Code, the Equal Treatment Act and other laws on equal treatment employers are obliged to observe the principle of equal treatment in the employment field. As a result of this obligation employers must not discriminate against employees.
Grounds on which discrimination is prohibited
The Equal Treatment Act states that it is unlawful to discriminate on the grounds of sex, marital status, race or nationality, sexual orientation, religion or belief and/or political orientation. Other laws state that it is also unlawful to discriminate on the ground of age, part time /full time or fixed term status and disability or chronic illness.
The prohibition of discrimination on the ground of disability is supplemented by an obligation to make effective adjustments to accommodate the needs of a disabled/chronically ill person if asked to do so, unless this would impose a disproportionate burden on the employer.
The law applies to all workers, whether paid or unpaid and including the self-employed. The law applies irrespective of the employee’s professional level.
Forms of discrimination
The law prohibits direct discrimination, indirect discrimination, harassment (including sexual harassment) and victimisation.
It is also unlawful to issue instructions to discriminate.
Direct discrimination occurs when an employer treats a person with a particular attribute (ie religious belief, race, sex, age, etc.) less favourably than the employer would treat a person without that attribute in the same or similar circumstances.
Indirect discrimination is where criteria other than the prohibited grounds are applied in the employment context, but which have the effect of operating to the disadvantage of a particular sex or group.
Victimisation is where a person is treated less favourably because he/she has brought a complaint or discrimination proceedings against his/her employer or helped another person to do so (for example by giving evidence on that other person’s behalf).
In most cases discrimination also includes any kind of harassment on one of the prohibited grounds (see below).
Can discrimination be justified?
Discrimination may be lawful in certain circumstances:
- in the case of discrimination on the grounds of age, between part time and full time workers and employees with fixed term employment agreements if objectively justified, which is the case if discrimination is a proportionate (or appropriate and necessary) means of achieving a legitimate aim
- in the case of indirect discrimination, if it can be objectively justified (sex and disability or chronic illness)
- where the law specifies exceptions (as may be the case in the event of gender or race specific occupations and, for example, in the case of termination of employment at the state pensionable age), and
- in the case of positive discrimination (affirmative action), which is allowed in restricted circumstances.
Prohibited discrimination in practice
Discrimination is prohibited throughout the employment relationship, including during recruitment, disciplinary action, dismissal and when renewing an employment agreement.
Discrimination on the grounds stated in the Equal Treatment Act as well as on the grounds of age and disability or chronic illness is also forbidden in relation to the membership of, and involvement in employers’ or employees’ associations.
The prohibition against discrimination does not apply if the aim of the discriminatory measure is to place certain people (women, persons belonging to a particular ethnic or cultural minority group, persons with a disability or chronic illness) in a privileged position in order to eliminate or reduce de facto inequalities and provided that the different treatment is reasonably proportionate to the aim.
Harassment is prohibited by statute. The definition of harassment on the grounds of sexual orientation, age, disability, religion or belief and race and national origin is “conduct which has the purpose or effect of violating another person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for another”.
Employers are also under an obligation to ensure, so far as is reasonably practicable, the health and safety of employees. This includes an environment free of harassment.
An employer is potentially liable for any acts of discrimination committed by an employee “in the course of employment”, regardless whether the employer knew or approved of the acts. The employer can only avoid this liability if he can show that he had taken “all steps reasonable practicable” to prevent the discriminatory acts from taking place.
Diversity training for staff
There is no legal obligation to give diversity training.
Complaints about discrimination can be filed with the Netherlands Institute for Human Rights, responsible for monitoring compliance with the Equal Treatment Regulations. An employer can apply to the Institute for a ruling as to whether a particular measure is discriminatory. Although not legally binding, the Institute’s decisions are usually complied with.
Legal actions can be brought in the civil court following proceedings with the Netherlands Institute for Human Rights or in lieu of such proceedings. Legal actions can be brought in the Civil court following proceedings with the Netherlands Institute for Human Rights or in lieu of such proceedings. These proceedings are not common.
Further details relating to discrimination and harassment in the Netherlands are available from our International Employment Issues (IEI) microsite here.
This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.