The Law of 15 November 2022 amending the Law of 10 May 2007 (the “Gender Act”) to combat discrimination between women and men now replaces the protected criterion of “gender” with 11 protected criteria: gender, pregnancy, medically assisted reproduction, childbirth, breastfeeding, maternity, family responsibilities, gender identity, gender expression, gender characteristics and gender reassignment. The Gender Act already equated most of these characteristics with gender. The criterion of “family responsibilities” is completely new.
The new protected criterion of “family responsibilities” covers “the situation that occurs when persons are responsible for dependent children or those domiciled with them, or have family members who need social, familial or emotional assistance or care.”
Paternity, co-maternity and adoption, criteria that the Gender Act previously equated with the criterion of gender, are now no longer separate criteria. The criterion of family responsibilities is deemed to include these protected criteria.
Family responsibilities include not only the care responsibilities parents have towards their children and the leave they can take for that purpose; any care or support for family members in need of social, familial or emotional assistance is also covered by this criterion, which is thus interpreted broadly.
The aim is to protect persons taking leave for family responsibilities from any disparate treatment because of the care or support they provide. The various types of leave extend to the public sector, self-employed and private sector workers. They include birth leave, adoption leave, parental leave, care leave, leave for compelling reasons and flexible working arrangements.
Rights in the context of family responsibilities
The amendment to the Gender Act also provides certain rights in the context of family responsibilities.
First, an employee has the right to return to the same job after the end of leave due to family responsibilities (including maternity leave, birth leave, adoption leave). If this is impossible, the employer must provide an equivalent or similar position, consistent with the employment contract.
Second, the employee must be able to benefit from any improvement in working conditions to which he/she would have been entitled during his/her absence due to family responsibilities leave.
Third, the employee is entitled to enjoy all acquired and future rights while taking maternity leave, birth leave, adoption leave or any other leave with regard to family responsibilities.
A violation of any of these rights may be considered discrimination and consequently result in a lump-sum compensation of 6 months’ gross wages.
Impact on flexible working arrangements
CBA 162 of 27 September 2022 introduced a new right to request flexible working arrangements to care for children or family members in need of care. This collective agreement also provides for protection against adverse action and dismissal, whereby employers may be ordered to pay a protection payment if necessary (as stipulated in CBA 162).
Thus, based on the amendment to the Gender Act, employees who exercise this right (demand for flexible working arrangement under CBA 162) are now protected from discrimination under the Gender Act.
On the basis of the Gender Act, from now on, all protection indemnities resulting from the termination of the employment contract (e.g., the indemnities for employee representatives in the works council or the Committee for prevention and protection at work, the protection indemnity in flexible working arrangements, or the protection indemnity when pregnant employees are dismissed) can be cumulated with an indemnity for discrimination based on a criterion protected by the Gender Act. In doing so, the legislator goes against the prevailing case law.
From now on, the Gender Act explicitly stipulates the rights of workers taking leave as part of “family responsibilities”. So be sure to respect these rights as an employer.
Furthermore, the Gender Act provides that compensation for discrimination under this law can be cumulated with other protection indemnities related to a dismissal.