Discrimination undermines equality between employees. The law prohibits and sanctions certain cases of unequal treatment. Unlike in the case of harassment, victims of discrimination may not be aware of it, as they do not have the information necessary to discover it. For example, a female employee may work for years without ever knowing that she earns less than her male colleagues. However, in serious cases, or where the employee feels particularly affected by the discrimination, it can have an impact on both physical and mental health.
Unfavourable treatment linked to restrictive criteria
Luxembourg labour law does not explicitly state a general principle of equality obliging the employer to treat all employees equally, and the case law does not seem to be moving in this direction. In other words, an employee who is not treated equally to one of his colleagues cannot automatically challenge this decision and oblige the employer to justify a decision based on objective criteria and under the control of the judge.
Any unequal treatment is therefore not discrimination within the meaning of the law, even if, subjectively, it may be experienced as such by the employee. Only differences in treatment based on one of the criteria listed exhaustively in the law are discrimination in the legal sense.
Luxembourg legislation covers the following non-discrimination criteria:
gender (i.e. being male or female), including reference to marital or family status, pregnancy and maternity leave, gender reassignment
religion
convictions
sexual orientation
age
disability
nationality
race
ethnicity
For the criminal side, the Penal Code adds the criteria of origin, skin colour, morals, nation, trade union activities and state of health to this list.
The law defines ‘direct discrimination’ as a situation in which one person is treated less favourably than another is, has been or would be treated in a comparable situation, on the basis of one of the above criteria.
A typical case is where women are paid less than men for the same job. Similarly, it would be direct discrimination for an employer to automatically reject all applications from people over 50.
Indirect discrimination occurs when an apparently neutral provision, criterion or practice is liable to place persons of a particular sex, religion or belief, disability, age or sexual orientation, or actual or presumed membership of a particular race or ethnic group at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.
Thus, for example, a rule that disadvantages part-time employees may constitute indirect discrimination on the basis of gender, since statistically a clear majority of part-time employees are women. Similarly, differentiations based on seniority can be analysed as indirect discrimination based on age.
What is the scope of application?
The non-discrimination rules are directed at:
conditions of access to employment, self-employment or occupation, including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy, including promotion
access to all types and levels of vocational guidance, vocational training, further training and retraining, including practical work experience
employment and working conditions, including dismissal conditions and pay
membership of, and involvement in, an employees’ or employers’ organisation, or any organisation whose members are engaged in a particular occupation, including the benefits provided by such an organisation
What are the exceptions to discrimination?
Discriminatory treatment may be justified in certain cases provided for by law.
For example, it is specified that certain legal advantages for pregnant women or disabled people are not to be considered as discrimination. With regard to differentiation on the basis of age, the law allows for certain objectively justified exceptions.
A more general exception is provided for at the level of recruitment; the employer may discriminate if, due to the nature of the particular professional activities concerned or the context in which they take place, the specific characteristic (gender, age etc.) of the employee constitutes an essential and determining professional requirement, provided that the objective is legitimate and the requirement is proportionate. The typical example cited in this context is the hiring of an artist or model to play a specific role.
Finally, the law also opens up the possibility of implementing positive discrimination measures and actions. These are advantages granted to employees in a category to put them on an equal footing with others and thus combat a de facto inequality. In other words, the aim of these measures is to achieve equal opportunities between employees by compensation. A typical case of positive discrimination is the introduction of quotas (for women, older people, people of different ethnicities etc.) in hiring, access to training, promotion etc. These measures must by nature be temporary. For positive actions in favour of the under-represented sex, the Ministry of Equal Opportunities can intervene to validate and financially support positive action projects.
What are the employer's responsibilities?
Those who must first respect the rules of non-discrimination are obviously those who have to take decisions affecting the employee, i.e. the employer, the head of the company, or the hierarchical superiors. Between work colleagues, there are in principle no problems of discrimination since they do not have decision-making power over each other; the conflicts that may arise will rather take the form of harassment, which will be qualified as discriminatory harassment if the victim is harassed because of his or her gender, age, religion etc.
However, the employer’s obligation is limited to respecting the principle of non-discrimination; he is not obliged to take an active part in achieving de facto equality, as positive discrimination measures remain purely optional.
Preventive and awareness-raising measures are not explicitly required by law and are thus left to the discretion of each employer.
While cases of harassment usually lead to psychological damage for the victim, which is never satisfactorily remedied by the allocation of a certain sum of money as compensation, cases of discrimination are primarily the cause of financial loss (lower salary, denial of promotion etc.), which can more easily be remedied by damages.
Report and seek advice
Employees who believe that they have been discriminated against can turn to their employer, line manager or the staff delegation to report the discrimination. They have a right to complain in the sense that they should not suffer reprisals because of their complaint.
Any employer will be obliged to analyse the complaint seriously and, where it concludes that discrimination has occurred, to redress the situation by granting complainants the benefits they have been unfairly denied.
Employees can also turn to the employee representatives, who can act as assistants or intermediaries in discussions with the employer. The services of a trade union or a lawyer can also be used to clarify the legal situation. The law allows trade unions and certain associations to take legal action against an employer, provided that the employee whose rights they are defending does not object. The Luxembourg State has also set up an independent body responsible for combating discrimination, namely the Centre for Equal Treatment (C.E.T.). Victims of discrimination can seek advice and information there. However, the C.E.T.’s prerogatives and means of action vis-à-vis employers and administrations remain limited.
The Inspectorate of Labour and Mines is also responsible for ensuring compliance with the rules on non-discrimination and can take on a mediation role or even intervene with authority with the employer, either ex officio or following a complaint.
Victims can lodge a complaint with the police about discrimination, as in many cases the treatment of the victim may qualify as a discrimination offence under the Criminal Code.
Only in the case of gender-based pay discrimination, i.e. where men or women are disadvantaged in terms of pay, the law stipulates as a sanction that the employer is obliged to increase the wages of the disadvantaged group to the level of the wages of the advantaged group.
For all other cases of discrimination, the law provides the nullity of the clause or decision taken by the employer as the only sanction. However, nullity is not an adequate solution in all situations, as it risks leaving a legal vacuum. Depending on the case, nullity may mean that the discriminatory situation is remedied not by granting the benefits to the workers treated unfavourably, but by taking these benefits away from everyone.
For past discrimination, employees may claim damages from the employer for the financial loss they have suffered as a result of being disadvantaged. This compensation may, if necessary, be supplemented by a sum to compensate for the psychological damage suffered by employees as a result of having been treated differently because of a personal characteristic.
The employee’s action is facilitated by the fact that the burden of proof is reduced.
It is sufficient for the complainant to provide evidence of direct or indirect discrimination; it is then up to the other party (usually the employer) to prove that there has been no violation of the principle of equal treatment.
A delicate issue that has not yet been resolved by Luxembourg case law is the admissibility of evidence provided through testing the level of discrimination in an employer. This concerns cases in which a victim or an association for the defence of victims of discrimination exposes employers to fictitious situations, for example by sending a large number of applications that differ on a central criterion such as age or sex, to see how he reacts and deduce a discriminatory attitude on his part.
CSL publication
Discrimination in the workplace
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