Main principles and definitions

This definition requires a person to be disadvantaged. A discriminatory statement directed at the general public, thus do not amount to direct discrimination.

An employer, an education institution or a provider of goods and services etc., may not disadvantage any individual from any of the protected groups by treating him or her worse than the employer etc., treats, has treated or would have treated someone else in a comparable situation, if the disadvantage is associated to the protected ground. The protection thus covers discrimination by association situations.

The ban on direct discrimination is limited by the possibility of justification. The new Discrimination Act reduces the possibility to justify direct discrimination in comparison with the old acts. Except for age discrimination, there are no longer any examples of justifications in national law which may be too wide to be acceptable according to EC-law. 

The definition of indirect discrimination in the new Discrimination Act is in close adherence to the Article 13 Directives. Since there is only limited case law regarding the old acts and no case law on the new act, it is too early to tell what ‘the test to be satisfied’ in these situations really is.

The Discrimination Act defines harassment and instructions to discriminate as forms of prohibited discrimination.

Furthermore, the acts oblige an employer or educational institution, which has knowledge of the fact that an employee/student feels that she or he has suffered harassment related to any protected ground, to investigate the matter and, when appropriate, to take action to prevent such harassment from continuing. Victimisation is also forbidden.

The prohibition of direct discrimination also applies when an employer or a university, by providing support and adaptation measures, may create a situation for a person with a disability that is similar to that for persons without such a disability and it may reasonably be required that the employer/university implements such measures. The duty of reasonable accommodation is thus an integral part of the concept of direct discrimination.

The new Discrimination Act has also solved some problems with regard to multiple discrimination, by making the same prohibitions apply to all grounds and by having one Equality Ombudsman dealing with all grounds. The issue of multiple discrimination has been dealt with in just one case, Labour Court 2010 nr 91. From that case it has become clear that if the same act can be presumed discriminatory with relation to more than one ground, it is still regarded as a single discrimination event and the amount of damages is unaffected by the number of grounds involved.