Employment Law

Discriminatory Recruitment Policy

The European Court of Justice (ECJ) has ruled on a number of issues that arose in the Belgian courts in the context of proceedings between a body for the promotion of equal treatment and an employer who reportedly stated in public that he would not recruit persons of Moroccan origin - Centrum voor Gelijkheid van Kansen en voor Racismebestrijding (CGKR) v Firma Feryn NV (Feryn).

CGKR claimed that Feryn, a firm specialising in the sale and installation of up-and-over doors, was operating a racially discriminatory recruitment policy. One of the firm's directors was reported in newspaper articles as saying that the firm would not recruit persons of Moroccan origin as fitters, because customers did not want Moroccans coming into their homes. The director made similar statements on television.

The national court held that the public statements in question did not constitute acts of discrimination but were merely evidence of potential discrimination. They indicated that persons of a certain ethnic origin would not be recruited by Feryn should they apply for a job with the company. The CGKR appealed to a higher court, which referred several questions to the ECJ for a preliminary ruling on the meaning of the EU Race Discrimination Directive.

The ECJ has followed the opinion given by the Advocate General in March this year. The EU Race Discrimination Directive must be understood in the framework of a wider policy 'to foster conditions for a socially inclusive labour market'. It therefore found that:

1. If an employer states publicly that it will not recruit employees of a certain ethnic or racial origin, this constitutes direct discrimination. Such statements are likely to dissuade certain candidates from applying for a job with the employer and this has the effect of hindering their access to the labour market.
2. Public statements made by an employer which let it be known that it will not recruit any employees of a certain ethnic or racial origin are sufficient for a presumption of the existence of a recruitment policy which is directly discriminatory within the meaning of the Directive. It is then necessary for that employer to prove that there was no breach of the principle of equal treatment. It can do this by showing that the organisation's actual recruitment practice does not correspond with the statements made.
3. Where a national court finds that there has been a breach of the principle of equal treatment, it must grant remedies that are 'effective, proportionate and dissuasive'.