More Employees Protected Against Retaliation in Cases of Discrimination, Harassment, and Unwanted Sexual Conduct

Effective June 1, 2023, protection for employees against adverse treatment by their employer in response to a complaint or a proceeding aimed at ensuring compliance with the rules regarding discrimination or unwanted conduct in the workplace has been expanded. This expansion of protection against retaliation resulted from an amendment to the federal anti-discrimination laws and the Welfare Act. The anti-discrimination laws have long provided a system of protection so that employees who feel they are victims of discrimination would dare to speak up about their situation without fear of retaliation from their employer. Protection was also already in place for employees who took formal action regarding harassment or unwanted behavior. Until recently, only employees who had filed a complaint themselves and witnesses who had provided a written statement as part of an official complaint were protected. According to the European Commission and the European Court of Justice, this protection system was inadequate, so Belgian legislation had to be amended. To begin with, protection is now extended to employees who have supported or defended a protected person or testified on their behalf, whether formally or informally. Since the Welfare Act also applies to discriminatory conduct—in particular, violence and harassment related to a ground of discrimination (such as national or ethnic origin, gender, disability, age, etc.) or unwanted sexual conduct in the workplace—this law was amended accordingly. The starting point for protection has also been changed. Protection now applies as soon as the employer knew or should have known that a report, complaint, or proceeding had been filed by the employee, even if the employer has not yet been formally notified. An employer should therefore exercise caution when considering measures against an employee who may be involved in a dispute regarding discrimination or unwanted conduct in the workplace. If the employer nevertheless takes an adverse action for which they cannot demonstrate that there is no link to steps taken by the protected individual, they may be ordered to pay damages equal to six months’ wages. Another new development is that both the federal anti-discrimination laws and the Welfare Act now explicitly stipulate that compensation for discrimination may be combined with compensation for failure to comply with protections against retaliation. This means that an employer may be ordered to pay twice the amount of six months’ wages. For example: A pregnant employee is discriminated against by being denied a promotion because of her pregnancy. She files a lawsuit and is awarded six months’ wages as compensation for the discrimination. The employer is displeased that the employee initiated these legal proceedings and terminates her employment. The employee also suffers damages as a result of this termination and may be awarded a second compensation payment of six months’ wages due to this retaliation. Do you have questions about the rules regarding discrimination and workplace well-being, or other labor law issues? Please contact one of our specialists.