A grey area: when are job requirements discriminatory?
When an employer has a vacancy, they will look for the most suitable new employee. Sometimes the job requires the applicant to have certain skills and knowledge. These job requirements may (indirectly) relate to candidate characteristics such as age or nationality. For example, an employer may want a future employee to speak Dutch or be familiar with the Dutch working culture.
Although these requirements may seem reasonable, they are not always permissible. Care should be taken when asking for certain job requirements. Some job requirements carry the risk that the employer is (indirectly) discriminating. This article outlines the relevant provisions on discrimination in job advertisements.
Prohibition of direct and indirect discrimination in job advertisements
Job advertisements must comply with the equal treatment requirements of the General Equal Treatment Act (Algemene wet gelijke behandeling, ‘AWGB’). This law prohibits job requirements that are - indirectly or directly - discriminatory.
Indirect discrimination occurs when a seemingly neutral job requirement disproportionately affects a group of persons of a particular:
- religion;
- belief;
- political affiliation;
- race, gender;
- nationality;
- age;
- heterosexual or homosexual orientation or
- marital status.
An example of an indirectly discriminatory job requirement is that applicants must be students. Although students can be of any age, most students are between 18 and 30 years old. This requirement has the effect of indirectly discriminating between applicants over 30 and those in the 18-30 age group.
A job requirement is directly discriminatory if it treats a person differently from how another person in a similar situation has been, is, or would be treated on one of the grounds listed for indirect discrimination.
Objective justification
Although there is a ban on discriminatory treatment in job requirements, indirect discrimination is permitted in some cases. The AWGB provides a ground for objective justification of indirect discrimination.
An indirectly discriminatory requirement is justified if the requirement has a legitimate aim and the means of achieving that aim are appropriate and necessary. The aim is legitimate if it is not unlawful, if it is sufficiently substantial and if the aim is not discriminatory. An aim is sufficiently substantial if it meets a genuine need of the business or a necessary objective of public social policy.
An example of a legitimate aim can be found in the concerning a job vacancy requiring knowledge of the Turkish and/or Moroccan languages. Including a language requirement in a vacancy constitutes indirect discrimination. An applicant of Turkish/Morrocan nationality will usually have a better knowledge of the language and culture than someone who does not have this nationality. However, the job involved looking after a group of mentally disabled clients who only spoke Turkish or Moroccan. The purpose of the requirement was to reach this group of clients properly. This aim is not unlawful, has no discriminatory basis and is sufficiently weighty. It ensures that good care can be provided, which is a genuine need of the business.
The discriminatory means is appropriate if it is capable of achieving the aim. The means is necessary if the aim cannot be achieved by a less discriminatory means. The example of the Turkish/Maroccan language requirement above is an example of an appropriate and a necessary means.
The language requirement was appropriate because knowledge of the language enabled communication with clients. The language requirement was necessary because good communication is very important when supporting this target group. Without the required language skills, proper care was not possible.
Requirement of knowledge of Dutch working culture
This article also mentioned the requirement of knowledge of Dutch working culture. This requirement is more difficult to justify. The reason for this is the subsidiarity of means. A less far-reaching vacancy requirement is possible. Instead of a knowledge requirement, the vacancy requirement can also be adjusted so that people who are willing to get to know the Dutch working culture are also suitable. This would not exclude people of non-Dutch nationality.
Another way of including a preference for this type of knowledge in a job advertisement is to use a pre. A pre is not a job requirement. You do not need it to be hired. A pre is an advantage; candidates who have additional knowledge and skills may have a pre over other candidates. Often pre's are easy to learn with a course or training and therefore do not exclude candidates.
Conclusion
The rules (as most of the time) leave room for interpretation and discussion when it comes to job requirements . Because of this grey area, an employer need to consider carefully whether a job requirement is potentially discriminatory. If there is any doubt about possible discrimination, it is possible to have the vacancy checked via the website of ‘het College voor de Rechten van de Mens’.
If you would like advice on a job vacancy, we can help you write the right job description to avoid discrimination.
