Belgium: Diversity in the workplace and legal compliance

More and more companies are striving to demonstrate their commitment to inclusion and diversity through workplace diversity and inclusion (D&I) training, equal employment opportunity (EEO) programs and affirmative action in the recruitment phase. To ensure these initiatives yield positive results, companies should first consider their legal ramifications. In this article, we take a quick look at the Belgian legal framework governing affirmative action and workplace D&I training.

Affirmative action

Discrimination in employment relationships is, in principle, prohibited under several legislations and specifically under the Act of 10 May 2007 combating certain forms of discrimination.¹ As an exception to the prohibition of discrimination, the Act of 10 May 2007 authorizes affirmative action – such as gender quotas – subject to the following conditions²:

• affirmative action should be aimed at effectively redressing significant and proven inequality/ies³
• the action must be clearly defined and proportionate, meaning that it must be limited to what is strictly necessary and not excessively affect other individuals’ rights⁴
• affirmative action must be temporary, limited to the time needed to redress the inequality/ies.⁵

In addition, an affirmative action plan can be submitted for approval to the Belgian government.⁶ In case of approval, the plan presents the added benefit of having legal certainty concerning its validity and therefore partially releases the employer of its liability.

However, in order to submit an affirmative action plan for approval, some additional formalities are required as the affirmative action plan will have to be included in a company collective bargaining agreement or in an accession act negotiated with the company’s trade union delegation.

Moreover, in case of mandatory training, the employer will have to consult with the works council or, lacking thereof, the employees themselves beforehand.

Finally, considering affirmative action will often affect employees’ working conditions, companies will have to ensure that any consultative process with employee representative bodies is complied with.

D&I training

Workplace D&I training is increasingly common, especially among human resources professionals. However, in an attempt to mainstream diversity considerations, some companies may be tempted to extend workplace D&I training to all staff members.

While an employer is in principle allowed to provide training to its employees, mandatory training can only be enforceable if it is relevant with regard to an employee’s position.

Therefore, in the context of workplace D&I training, companies are advised to design and adjust training based on employees’ roles and responsibilities within the company.

Along with the above, where training is made mandatory, employers should ensure that any disciplinary measure that could result from the failure to comply with that training is adequately reflected in the company’s work regulations.

Which data can be collected?

Surveying employees and/or applicants can provide companies with valuable information in designing an affirmative action plan or a D&I training.

However, personal data which can be collected in this regard are strictly limited. In Belgium, the European General Data Protection Regulation (GDPR) and the Act of 30 July 2018 concerning the protection of physical persons in relation to the processing of personal data must be taken into account when collecting applicants’ and employees’ personal data.

Data collected for diversity purposes frequently include information concerning gender, sexual orientation, race and ethnicity. Yet, as a matter of principle, any processing of personal data should be “proportionate” – that is adequate, relevant and limited to what is necessary in relation to the purposes for which they are processed.

Considering that race and ethnic data constitute special category data within the meaning of the GDPR, these data would only be lawfully processed where an employer can rely on one of the exception grounds mentioned in the GDPR. Oftentimes, however, explicit consent of the data subject will be the only eligible exception ground for processing these data. Yet, in an employer-employee relationship, the employee’s consent will likely not be considered as being “freely given,” considering the power imbalance between the parties. Therefore, and while affirmative action and diversity policies can be a legitimate ground for processing personal data, it is unlikely that the collection of special category data would be considered lawful.