Complaint against STIB for recruitment discrimination, an update on the issue

The STIB is facing a discrimination complaint from a legal professional following the rejection of her application for a recruitment position. The candidate, who applied for the positions of "legal officer" and "business analyst," claims that the rejection was due to her desire to wear the veil. She is supported by UNIA.

STIB, on the other hand, argues that it "lacked the necessary competencies" and that the decision had nothing to do with wearing the veil or religious symbols. This is an opportunity to remind that, even before hiring a worker, an employer is bound by strict rules. On one hand, the national collective labor agreement (CCT) No. 38 sets out strict rights and obligations, the most relevant in this case being that, during recruitment, a worker's private life must be respected, which excludes any questions that are not directly related to the evaluation and requirements of the job, and especially the obligation for the employer to justify the rejection of an application. On the other hand, the law of May 10, 2007, aimed at combating certain forms of discrimination, prohibits discrimination based on age, sexual orientation, civil status, birth, wealth, religious or philosophical beliefs, political beliefs, language, current or future health status, disability, physical or genetic characteristics, or social origin.

"She was not suitable"

It should be noted that rejecting an application due to the wearing of religious symbols is a direct discriminatory distinction unless it is justified by essential and determining professional requirements.

Without knowing the details of the case, what will be weighed first in court is whether STIB can prove that its decision was based solely on an objective assessment of the application, which showed that the candidate "was not suitable."

It is assumed that STIB, in the strict legal context mentioned earlier, has kept evidence. Moreover, STIB has long shown its commitment to prioritizing integration and respect for all.

What is surprising here is that STIB could have known that the candidate wore the veil (she must have worn it during the interview) and, most importantly, that she intended to wear it during work. In fact, the issue of wearing and/or the intention to wear the veil is generally prohibited under CCT No. 38. Unless there is a neutrality policy in the company, it is not generally allowed to ask whether the worker would be willing to comply with such a prohibition. And even then, some might say only if the position involves contact with the public.

Why "intersectoral" discrimination?

Furthermore, the invocation of "intersectional" discrimination raises questions. This refers to the particular case where a person is not discriminated against based on one criterion or another but based on the conjunction of both. In this case, the candidate would not be discriminated against because she is a woman nor because she wears a veil, but because she is a woman who wears a veil.

The 2007 law does not cover this scenario, and it would likely have to rely on indirect discrimination, meaning that a seemingly neutral criterion actually impacts a specific category of people more strongly due to one of the prohibited criteria. The concept is vague and has sparked debates for 30 years.

Moreover, by invoking intersectional discrimination, UNIA and the candidate are indirectly acknowledging that there would not be discrimination based on gender or religious beliefs, but rather based on the intersection of the two. This is surprising.

Why rely on a vague concept that is not addressed in the law when it seems more straightforward to argue for discrimination based on the wearing of religious symbols?

Given the current case law, even though this seems debatable, a neutrality policy, if it existed at STIB (which, to my knowledge, it does not), could not justify banning the veil for positions not related to the public/clients.

These two combined questions — or "intersectional" questions — raise concerns, considering that UNIA is at the forefront of defending intersectional discrimination. A conspiracy theory enthusiast might see this as a "test case" aimed at developing case law.4o mini