Unfair recruitment policies under Court scrutiny

A company manager recently stated in a number of interviews that he could not hire certain candidates of foreign origin due to the reluctance of some customers to let a foreign worker into their homes. This has lead to a complaint from the Centre of Equal Opportunities and Fight against Racism.

The Centre argued that the comments of the company manager were sufficient proof that the company, of which the manager was in charge, did not hire certain people because of their race or their ethnic origin. This constitutes a direct discrimination on the grounds of race and ethnic origin.

In its judgment of 28 August 2009 [1] the Labour Court of Brussels agreed with the Centre. When an employer states publicly that he will not hire certain persons because of their race or their origin, it may be assumed that he pursues a discriminatory employment policy. This creates a negative presumption that the employer commits a breach of the discrimination legislation. The employer can refute this negative presumption by demonstrating that he, in contrary to his public statements, pursues a recruitment policy that does not discriminate. It is however difficult to prove. The employer must show that his recruitment policy has been reviewed following external recommendation and that the criteria for selection are as objective as possible.

The fact that the employer is a SME is not relevant in this respect. According to the Labour Court, a small employer must, like any large employer, offer equal opportunities for everyone when vacancies occur: “Every employer, of a small or large company, who respects himself and wants to be respected, has, beyond the pursuit of profit, a social role to play. Social integration is obtained through work and employment and this is valid for all men and women, regardless of their origin.

In the case at hand, the employer could not demonstrate that he no longer pursued a discriminatory recruitment policy. To the contrary, his lack of cooperation with certain authorities, such as the VDAB, was held against him. The presumption of discrimination could not be denied and the breach of the anti-discrimination law was confirmed: as a result the employer was ordered to stop his discriminatory recruitment policy and a copy of the Labour Court’s judgement had to be published in four national newspapers.