15 July 2019
According to the Netherlands Institute for Human Rights, the Central Agency for the Reception of Asylum Seekers (COA) is guilty of discrimination for not entering into employment with a woman because of her pregnancy.
The woman in question had been the supporter of the Location Manager at COA for some time. She then decided to apply for the position of Case Manager at COA. COA invited her for two job interviews. At the end of the second conversation, the woman informed them that she was pregnant. Shortly thereafter, she was rejected by telephone for the position because “it would not be useful to train her now that she was pregnant”. If she was still interested after giving birth, she could contact COA. The woman did this, but by that time there was no vacancy at COA and a staff hiring freeze was in place.
By law, an employer is not allowed to make a distinction based on gender during the application process. This also includes a distinction based on pregnancy. The woman found that there was prohibited discrimination on the grounds of gender, because the decision not to employ her was related to her pregnancy. For that reason the woman submitted a complaint to the Netherlands Institute for Human Rights (the Institute). COA stated that there was no question of pregnancy discrimination. The woman would not have been hired anyway because there were doubts about her suitability and level of education. The Institute thought differently and agreed with the woman. For example, the comments made during the interview revealed that the woman was considered fit until she informed COA that she was pregnant. The fact that there was an internal mail from COA in which doubts about the suitability of this woman were raised did not change the Institute’s assessment.
Following the complaint procedure at the Institute, the woman started civil proceedings at the court to receive compensation. The judge shared the opinion of the Institute and awarded the woman compensation for material damages in the amount of € 37,077.21.
The reimbursement consisted of the missed income for the duration of one year, since it was considered plausible that the agreement would’ve been extended for that duration. The missing transition payment was also taken into account.
The woman also requested compensation of € 15,000 for immaterial damages. This was rejected. According to the judge, the immaterial damage was not sufficiently substantiated and the woman appeared to have no major psychological complaints as a result of the actions of COA.
The question is whether this opinion is correct, now that the position can be taken that discrimination could be regarded as an attack on the person, as a result of which immaterial damage is a given and does not need to be substantiated.
If there is discrimination, a complaint can be submitted to the Netherlands Institute for Human Rights. In the case of a well-founded complaint, the judgment is published in which the discriminating party is mentioned by name. The civil court can also award hefty damages.
Have you been discriminated against or accused of discrimination? We can advise you about acting in line with equal treatment legislation and the legal possibilities.
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