The Netherlands / Netherlands Institute for Human Rights (College voor de Rechten van de Mens) (2024), Opinion 2024-5.
Country
Netherlands
Title
The Netherlands / Netherlands Institute for Human Rights (College voor de Rechten van de Mens) (2024), Opinion 2024-5.
View full case
Year
2024
Decision/ruling/judgment date
Tuesday, January 23, 2024
Incident(s) concerned/related
Discrimination
Related Bias motivation
Religion
Groups affected
Muslims
Court/Body type
National Human Rights Body
Court/Body
Netherlands Institute for Human Rights (College voor de Rechten van de Mens)
Key facts of the case
A Muslim woman wearing a scarf was seconded to the Amsterdam District Court and worked as an usher or messenger within the Service Team of the Court. She was the first usher within the court to wear a headscarf. Within the court, ushers wear a uniform. Judges and court clerks are not allowed to wear headscarves. All other court employees are allowed to wear a head scarf. After a month and a half, the woman contacts the Head of Service by phone. She says she feels discriminated against by a comment made by the senior usher. A colleague informed her that the senior usher told her fellow ushers that he would not have hired her if he had been at the job interview. He disagreed with the woman wearing a headscarf in the performance of her duties, as, according to him, ushers should exude neutrality. The woman complained with her superiors about the behaviour of the senior usher. The woman argues that the way in which her superiors did handle her complaints did not meet the requirements of due care. To this end, she argues that the court failed to label the statements of the senior usher as discriminatory in the conversation with her and the senior usher. Furthermore, the court (employer) failed to make it clear that discriminatory treatment is not permitted in the organisation. The Institute is of the opinion that the senior usher's comment made towards his colleagues about the woman's headscarf should be classified as a comment by which he portrayed the woman as inferior, or in a negative light. The employer (court) also acknowledged this during the hearing. This comment can therefore be considered discriminatory treatment. Moreover, the Institute finds that the discriminatory treatment of the senior usher towards the woman is directly attributable to the employer (court). This means that the employer (court) discriminated against the woman by failing to sufficiently provide a discrimination-free working environment. Moreover, the Institute is of the opinion that the employer (court) failed to inform the woman whether or not her discrimination complaint was well-founded. This means that the employer (court) discriminated against the woman in the working conditions by not handling her discrimination complaint with due care.
Main reasoning/argumentation
Under the General Equal Treatment Act, employers must provide a discrimination-free work environment for their employees (including employees who wear specific clothing because of their religion).The Institute considers the aforementioned remark utterd by the senior as discriminatory treatment. The employer is found to be guilty of discrimination on the ground of religion under the General Equal Treatment Act. In addition, the employer must handle discrimination complaints from employees with sufficient care. In this case the employer failed to do. so and is found to be guilty of discrimination under the General Equal Treatmemt Act.
Is the case related to the application of the Framework Decision on Racism and Xenophobia, the Racial Equality Directive?
Key issues (concepts, interpretations) clarified by the case
Muslim employees who wear a headscarf must be protected against discrimination on the ground of religion under article 5 sub 1 together with Article 1 of the General Equal Treatment Act.In this case the employee was discriminated by her employer (a District Court). The employer discriminated against the woman by failing to sufficiently provide a discrimination-free working environment. Moreover, the Institute is of the opinion that the court failed to inform the woman whether or not her discrimination complaint was well-founded. This means that the court discriminated against the woman in the working conditions by not handling her discrimination complaint with sufficient care. This is prohibited under the General Equal Treatment Act.
Results (sanctions, outcome) and key consequences or implications of the case
The Institute for Human Rights is of the opinion that the Amsterdam District Court discriminated against its employee on the grounds of religion. This is prohibited under the General Equal Treatment Act. Opinions of the Institute are not binding. The Institute recommends that the Court makes an internal complaints procedure and give it due publicity among its staff.
Key quotation in original language and its unofficial translation into English with reference details
"Het College stelt op grond van wat de rechtbank heeft meegedeeld over de taken van de senior bode vast, dat hij het gezag had over de vrouw voor wat betreft de praktische uitoefening van haar taken. Daarom is het College van oordeel dat de discriminatoire bejegening van de senior bode richting de vrouw rechtstreeks aan de rechtbank kan worden toegerekend. Dit betekent dat de rechtbank de vrouw heeft gediscrimineerd bij de arbeidsomstandigheden door onvoldoende voor een discriminatievrije werkomgeving te zorgen."
"Het College is dan ook van oordeel dat de rechtbank heeft nagelaten de vrouw te informeren over het al dan niet gegrond zijn van haar discriminatieklacht. Dit betekent dat de rechtbank de vrouw heeft gediscrimineerd bij de arbeidsomstandigheden door haar discriminatieklacht onvoldoende zorgvuldig te behandelen."
"The Institute states, based on what the Court has stated about the tasks of the senior messenger, that the senior messenger had authority over the woman with regard to the practical performance of her tasks. The Institue is therefore of the opinion that the discriminatory treatment of the senior messenger towards the woman can be directly attributed to the Court. This means that the Court discriminated against the woman in the working conditions by failing to provide a working environment free of discrimination."
"The Institute is therefore of the opinion that the Court failed to inform the woman whether or not her discrimination complaint was well-founded. This means that the court discriminated against the woman in the working conditions by not handling her discrimination complaint with sufficient care."
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