• Public Statements on Non-Recruitment of Candidate Employees of a Foreign Origin Constitute Direct Discrimination
  • August 21, 2008 | Authors: Emmanuel Plasschaert; Frederik Van Remoortel
  • Law Firm: Crowell & Moring - Brussels Office
  • The Court of Justice (ECJ) confirmed once again in its July, 10, 2008, judgment the importance of equal treatment and non-discrimination on the labour market. The ECJ held that when an employer states publicly that he will not recruit candidates of foreign origin, this constitutes direct discrimination.

    In 2005, a manager of Feryn NV, a Belgian company specialising in the sale and installation of garage doors, publicly stated that Feryn NV was seeking to recruit installers. He added that Ferryn NV would not recruit candidates of foreign origin due to the reluctance of its customers to grant employees of foreign origin access to their homes.

    The Belgian "Centre for Equal Oportunities and against Racism" therefore applied to the Labour Court for a finding that Feryn applied a discriminatory recruitment policy. The judge dismissed the claim for reasons unrelated to the merits of the claim.

    In appeal the case was referred to the ECJ for a preliminary ruling on the interpretation of the principle of equal treatment between persons irrespective of racial or ethnic origin, as mentioned in EU Directive 2000/43.

    The ECJ stated that "the fact that an employer states publicly that it will not recruit employees of a certain ethnic or racial origin constitutes direct discrimination in respect of recruitment (…), such statements being likely strongly to dissuade certain candidates from submitting their candidature and, accordingly, to hinder their access to the labour market" (§ 28).

    The ECJ added that such public statements "are sufficient for a presumption of the existence of a recruitment policy which is directly discriminatory" (§ 34). Consequently, given such presumption, the employer concerned will have to prove that there was no breach of the principle of equal treatment and non-discrimination, for example by showing that the employer's actual recruitment practice does not correspond to those statements.

    The ECJ also confirmed that the EU Directive requires the Member States to provide for effective, proportionate and dissuasive sanctions, to apply even when there would not be an identifiable victim.

    With this judgment, the ECJ confirms the growing importance of the principle of equal treatment and non-discrimination in HR matters in Europe.

    In Belgium, for example, this tendency is clear from the increasing number of claims brought by the "Centre for Equal Opportunities and against Racism" and recent legislative initiatives such as the Act of 10 May 2007 regarding the combating of specific forms of discrimination, which i.a. provides for fixed indemnities and possible criminal sanctions in case of violation of the principle of non-discrimination.