Is medical history protected by discrimination law? – Health and security

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Belgium has expanded its anti-discrimination law to cover the “state of health” of individuals, meaning their medical history is now covered.

Belgium has banned discrimination based on an individual’s “current or future state of health” since 2007. On July 7, 2022, a bill was passed that expands this. The notion of “current or future state of health” is replaced by that of “state of health”, which means that the state of health of an individual past health status is now also protected by law against discrimination.

Prior to this amendment, the Anti-Discrimination Act 2007 only prohibited discrimination on the basis of “present or future state of health”. This implied that people could, in principle, be discriminated against on the basis of a past illness from which they were now cured or in remission. For example, a person who had had cancer in the past and was refused a job because the employer feared that he might relapse was not protected.

The bill changes that. An employer who discriminates on the basis of an employee’s medical history can now be ordered to pay damages amounting to six months’ salary. The employee or the candidate who considers himself discriminated against, for example during an application or by his dismissal, only has to prove a presumption of discrimination. Jurisprudence takes into account the chronology of the facts. It will then be up to the employer to prove that the decision to dismiss or not to hire was taken for non-discriminatory reasons.

However, this change is not entirely new. The two national CCT numbers. 38 on the recruitment and selection of employees and national CLA no. 95 on equal treatment during all phases of the employment relationship already apply the protected criterion of “medical history”. However, unlike the anti-discrimination law, these collective agreements do not provide for compensation for the victim of discrimination.

Concretely, in the anti-discrimination law, the words “current or future state of health” will be replaced by the expression “state of health”, so that a past state of health is also covered. This will also put an end to the ambiguity that existed on this subject and to the divergent interpretations of case law and legal doctrine.

It should be noted that a distinction based on an individual’s state of health is not prohibited in all circumstances. As long as the employer can justify the difference in treatment on the basis of a legitimate aim and demonstrate that the means to achieve this aim are necessary, there is no discrimination.

action point

Thanks to an amendment to the anti-discrimination law, it is now prohibited to discriminate not only on the basis of the current or future state of health of an employee or an applicant, but also on the basis of their medical history. . An employer who cannot justify discrimination based on the state of health exposes himself to having to pay compensation of six months’ salary to the victim of the discrimination.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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