The Dutch Equal Treatment Act in Theory and Practice

10 May 2003

Janny R. Dierx and Peter R. Rodrigues¹
 

Introduction

The principle of equality in the Netherlands was not protected by special civil anti-discrimination law until 1994. Before then, special civil law only protected discrimination on the grounds of sex. This article describes how specific anti-discrimination legislation has produced positive effects. As commissioners of the Equal Treatment Commission, we have witnessed that this legislation creates a structure for debating valid arguments. A legal framework to decide on the legitimacy of discriminatory practices facilitates the acceptance of intervention not only by the judiciary, but also by others who know the law and can prevent discriminatory actions by referring to it.

We focus specifically on the role of the Dutch Equal Treatment Commission (ETC) and the jurisprudence on discrimination on the grounds of race, nationality and religion in relation to ethnicity, in particular relating to religious dress prescriptions such as headscarves. We will discuss the better and the worse sides of the Dutch legislation, both in theory and in practise. All EU Member States must implement the Race Equality Directive (2000/43/EC) into law by July 19, 2003. This Directive will affect Dutch legislation as well. Although we will touch on the consequences of the Directive, this article is not meant to be an exhaustive analysis of the changes effected by the European Community legislation. The article is an overview of the Dutch Equal Treatment Act and the operation of its enforcement body - the ETC.

Basics of the Equal Treatment Act (ETA)

In 1983, the principle of equal treatment was introduced into the Dutch Constitution. According to Article 1 of the Constitution, all persons in the Netherlands should be treated equally in equal circumstances, and distinctions on grounds of religion, belief, political opinion, race, sex, or any other grounds, are prohibited. The principle of equal treatment and non-discrimination functions in the relationship between the state and the individual. This is also true for Article 1 of the Constitution, which is not directly applicable in lawsuits between private individuals. The Constitution only applies in cases between the state and private individuals. There is no Constitutional Court in the Netherlands, but pursuant to Article 94 of the Dutch Constitution, the judiciary interprets national law in accordance with binding international law. Human rights also take effect in relations between individuals. This so-called "horizontal effect" is explained in the Equal Treatment Act (ETA)² and deals with direct and indirect unequal treatment based on religion or belief, political orientation, race, gender, nationality, sexual orientation, and marital status.

The ETA was enacted after ten years of public and political debate. Its enactment required strong support from several political parties. These parties were convinced by the interpretation of international law that requires the transposition of international treaty obligations into national law. They also saw the need to elaborate the civil law effect of the principle of equality and other human rights, especially the constitutionally guaranteed freedoms of religion and education. Strong support has come from non-governmental organisations and enforcement agencies. There also was strong opposition from religious groups because they feared a loss of control in appointing and dismissing employees with regard to religious requirements. The current ETA still carries traces of the political debate that preceded it. New discussions appear to lay ahead as Islamic citizens' claim to protection of the freedom of religion, including the right to found Islamic schools and churches, is in some respects renewing debate about the extent of the freedom of religion.

It is worth noting that the ETA does not speak of discrimination. The neutral term "differentiation" is used, meaning that the ETA prohibits differential treatment and not discrimination. This is not merely a question of semantics: differential treatment can be unlawful even in the absence of an intention to discriminate, whereas under Dutch criminal law the intent has to be proven. In this article, we will nevertheless use the more common expression "discrimination", which refers to differential treatment.

The law was drafted according to a so-called "closed system", which forbids direct discrimination and allows only statutory exceptions. These exceptions are therefore explicitly incorporated into the Act. This system relies on the development of the concept of direct discrimination in European Community law, both in case law and in directives. Direct discrimination is related to distinctions directly based on one of the grounds of discrimination covered by the law. The ETA - in line with European Community legislation on equal treatment on grounds of gender - also covers indirect discrimination. Indirect discrimination occurs when certain requirements, although neutral on their face, have a disparate impact on a group of people in relation to one of the discrimination grounds. The concept of indirect discrimination is designed to address systemic forms of discrimination. Statistical evidence is often involved in cases of indirect discrimination, but not if the disadvantage for minority groups or non-nationals is evident. This concept has been elaborated in the case law of the European Court of Justice (ECJ) in Luxembourg.³ Indirect discrimination is forbidden unless it can be justified on grounds unrelated to any form of discrimination. The specific measure must correspond to a genuine need of the employer or the person responsible for the discrimination. The ECJ developed an objective justification test that has been incorporated into Dutch legislation. Examples of established, indirect discrimination are criteria such as language requirements that may have a disparate impact on minorities. An advertisement for unskilled labour may not include the requirement of speaking fluent Dutch, which will be the case in an advertisement for an editor.⁴ Also, based on ECJ jurisprudence, financial arguments do not constitute an objective justification on their own.⁵

Scope of the ETA

The ETA prohibits discrimination on grounds of religion, belief, political opinion, race, sex, nationality, hetero- or homosexual preferences or civil status in the following areas:

• Employment and professions, (including) advertisement, selection procedure, commencement of an employment relationship, all terms and conditions of employment including salary, pensions, on the job training, promotion and dismissal (Section 5);
• Supply of goods and services and the conclusion of agreements in the course of conducting business or exercising a profession, by the public service and institutions working in housing, welfare, health care, culture and education (Section 7);
• Public supply of goods and services and the conclusion of agreements, referring only to the conduct of private persons and enterprises. State conduct falls within the scope of the ETA whenever it does not concern the execution of administrative powers (Section 7);
• School and career advice (Section 7).

On June 29, 2000, the Council of the European Union adopted Directive 2000/43/EC, "implementing the principle of equal treatment between persons irrespective of racial or ethnic origin". The Directive bans discrimination in various fields, including social security and social benefits. The latter should be explicitly included in Dutch law and will broaden the current level of protection. As of the time of writing of this article, it is not clear whether the competences of the ETC will include hearing cases regarding social security or benefits. This would certainly signify a considerable increase in the Commission's workload.

Statutory Exceptions

The ETA also provides for certain specific exceptions to the rule of equal treatment with regard to employment as well as other fields. The following are some of the exceptions:

• In cases where gender or race is a determining factor, a legal exception can be invoked. This is the case in certain professions, such as in casting an actor to fit the role of a specific character. Further, the equal treatment principle is not applicable to requirements that may reasonably be imposed in view of the private nature of the employment relationship;
• In some cases, nationality can also be a deciding factor, for example, if athletes wish to play for the national team, the corresponding citizenship may be required. This also applies to cases where the discrimination is based on binding governmental regulations (such as asylum and immigration);
• Institutions founded on religious, ideological, or political principles are allowed to set special requirements with regard to the institution's purpose, enabling them to require a genuine occupational qualification for a particular job;
• An exception to the rule of equal treatment, which has an inclusive effect, is preferential treatment (affirmative action) on grounds of race and/or gender. Preferential treatment of women or persons belonging to a particular ethnic or cultural minority is permitted, provided that the aim is to eliminate or reduce de facto inequalities and the regulations are proportionate to that aim. Under Community law, preferential treatment for women is becoming more difficult as provisions tend to become stricter.⁶ The ETC considers preferential treatment of minorities less strictly, as Community law interpreted by the ECJ does not yet apply to the grounds of race, but only to gender.⁷ The rule established by the ETC based on the few cases it had considered⁸ is that a preferential treatment policy involves a duty to find out with due care whether a minority candidate is equally suitable for a job.

The ETC has also ruled that racial harassment in the workplace comes within the scope of the definition of discrimination in the ETA.⁹ The employer's duty to abstain from discrimination in employment implies that it is the employer's responsibility to ensure, by way of supervision, that those persons who are under his authority abstain from discrimination. Supervision in prevention of discrimination is not limited to employees, but can also be extended to third parties such as a patient in a nursing home. The employer's responsibility also includes the duty to investigate complaints about discrimination with due care. Absent due care, the employer acts in default of the principle of equality in employment. This ruling is in line with the requirement of the Race Equality Directive (Article 2(3)). Compliance with the Directive, however, will require incorporation of an explicit provision against (racial) harassment in the ETA.

Sanctions

The ETA provides for only two types of sanctions, which is the cause of much criticism. The ETA protects the employee against discriminatory termination of employment with standard terms that violations of the Act are void (Section 9), and termination of an employment contract in defiance of the Act is also void (Section 8). Pursuant to Section 8 of the ETA, discriminatory dismissals are null and void. A dismissal because the dismissed person brought a claim under the ETA is also null and void.

In practise, invoking the invalidity of the dismissal is not often a real alternative for the dismissed person. If the court determines the dismissal to be invalid, the dismissed person is entitled to the payment of all salaries due. Since the employment agreement is still in force, a discrimination victim must resume her position with the same employer. It goes without saying that in such situations, especially in the case of a small company, it is almost impossible for the employee to continue the employment relationship. Thus, the invalidity of discriminatory dismissal is rarely invoked.

Compensation may be the only available remedy in cases of a breach of the equal treatment law. Therefore, dismissed persons have an interest in acquiring a ruling from the ETC establishing that the employer has acted in violation of equal treatment legislation. Such a ruling might increase the compensation in civil law procedures when the dismissal is considered obviously unreasonable. Plaintiffs have filed successful claims for compensation to civil courts in cases of the failure of an affirmative action plan for ethnic minorities¹⁰ and because of racial harassment during the work process.¹¹

The law, therefore, is aimed mainly towards enabling a party whose rights have been violated to initiate tort proceedings. Damages can be claimed under tort law¹² or under labour law.

Essentials of the Equal Treatment Commission

The ETA provides for the establishment of an Equal Treatment Commission (ETC), vested with powers to investigate, mediate, and judge. The ETC provides victims of discrimination with an important venue for redress. The Dutch Commission, however, does not fulfil the requirement of the Race Equality Directive of independent assistance to victims (Article 13(2)) because the ETC is a semi-judiciary body, i.e. part of the judiciary and as such it has no mandate to provide legal aid. Nevertheless, victims of discrimination have access to the legal aid of around forty local anti-discrimination bureaus that play an important role in redress in discrimination cases.

Structure

The ETC is an independent body of nine members and nine deputy members. The Minister of Justice appoints members for six years following consultation with four other Ministers. Members can be re-appointed, and their legal position is similar to that of the judiciary. The chair and co-chairs must fulfil the same requirements for appointment as a district court judge. All members are selected on the basis of their expertise in the field of equality and its legal protection. In all, the ETC staff comprises 50 people. Moreover, the ETC may seek assistance from civil servants of relevant government departments, for instance, by calling in the expertise of job evaluation experts in equal pay cases.

Objectives and Functions of the Commission

The ETC's general objective is to promote the implementation of the anti-discrimination legislation. The ETC's most important power is to conduct investigations to determine whether discrimination has taken or is taking place. By giving non-binding opinions, the ETC interprets the law. The rulings of the ETC may also include, and often do include, recommendations on how to comply with the law. Group actions are allowed: interest organisations may file a complaint (to the ETC as well as to courts) on behalf of the people they represent. The ability of interest organisations to sue is an important vehicle to combat structural forms of discrimination. Nevertheless, after a rather good start when 10% of all claims were group actions, the percentage has lowered to less than 4% in 2001.

Both individuals and organisations can bring cases to the ETC. Persons or organisations may also want to know whether their own conduct is in accordance with the law. Work councils or representative bodies of civil servants are also allowed to bring a case to the ETC. The ETC's high accessibility is essential because the ETC is meant to be an easily accessible body, a semi-judicial alternative to judicial review. Although individual claimants comprise the majority of cases, group actions have proved to be important for addressing systemic discrimination as regards equal pay and for focusing on structural causes for discrimination. Whether the ETC will succeed in focusing on systemic discrimination strongly depends on the kind of claims brought to its attention. Quite a few of the important cases to date brought before the Commission have been lodged by unions (as a group action or supported by Anti-Discrimination Bureaus or union lawyers).

Proceedings before the ETC are free; legal assistance is neither required nor necessary because the ETC itself plays an active role in the investigation of complaints. Under Dutch legislation, failure to co-operate with an ETC investigation constitutes a criminal offence (Section 19 ETA). In the first six years of its existence, the ETC has taken one employer to Court because he refused to disclose salary data to the ETC.¹³ The legal obligation to provide information prevails over the employees' right to privacy.

In general, both parties are invited to submit their views in writing. If necessary, investigations can be conducted on the spot. When the ETC has collected sufficient information, parties are questioned at a hearing. If necessary, the ETC can order parties to be present at the hearing. Witnesses can also be invited or summoned to attend the hearing, both by the parties and by the ETC, but the ETC cannot hear parties under oath. The ETC places great value on the hearings since they provide an opportunity to discuss arguments as well as to explain the scope and relevance of anti-discrimination law and to broaden its effects. After the hearing, the ETC discusses the case in a closed meeting and delivers the judgement within 8 weeks. In urgent cases, emergency procedures are possible (for example, in cases of short-term dismissal).

Limitations to the Commission's Competence

The ETC's competence is limited in a number of ways. For example, the Commission cannot consider complaints about the police. The ETA mainly provides protection against discrimination within the area of private law. Consequently, most of the public sector is excluded. For instance, although the Commission may deal with complaints about refusal by local authorities to let a house to members of minority groups, refusal of a housing permit by the same authorities is beyond the ETC's competence. Finally, the powers of the ETC are limited to the specific equal treatment laws. As a consequence, the ETC can only take into account international norms which prohibit racial discrimination or other grounds by way of treaty-consistent interpretation within the framework of the national equal treatment legislation. These limitations were, for instance, brought to the attention of the Committee on the Elimination of Racial Discrimination (CERD). In its concluding observations regarding the periodic reports of the Netherlands, the Committee draws attention to the proposals to extend the competence of the ETC and to make it more effective in countering discrimination.¹⁴

Burden of Proof

In its present form the ETA does not provide for reversal of the burden of proof. The ETC, however, does apply it by interpreting Community case law. The EU Directive 97/80/EC on the burden of proof in cases of discrimination based on sex has been implemented explicitly in the Civil Code. Reversal of the burden of proof is currently applied by ETC in cases of discrimination on all grounds. If, for example, the plaintiff holds that her race or descent has been the reason for refusal of promotion, and she can prove her credentials were sufficient to meet the requirements, the defendant has to provide evidence proving there have been other relevant reasons that justified the refusal. If the employer cannot clarify her decisions in an adequate manner, a violation of the law will be established. Compliance with the Race Equality Directive requires that the provision concerning the reversal of the burden of proof (Article 8) be incorporated into Dutch domestic law.

Investigative Powers and Advisory Role

The ETC may launch investigations on its own initiative in specific areas where indications of systematic discrimination exist. This power is supposed to counterbalance the strong emphasis on individual rights in Dutch law. In practice, public sector investigation is a massive operation, one at which the ETC succeeded only a couple of times during its first six-year period. Investigations on the ETC's own initiative concerned collective agreement provisions on pre-pension plans and access to in vitro fertilisation in hospitals.

The ETC is now seeking support for the expansion of its investigative powers to cover individuals or smaller groups of companies. Especially in the field of equal payment, the ETC expects that structural improvements will benefit from such investigations. During the last couple of years, the ETC has elaborated investigative and statistical methods to identify unequal payment on grounds of race and gender. In several cases, comparing average wage-levels and average career patterns concerning work of equal value, the ETC revealed discriminatory policies.

The ETC also views its role to include advising Ministers on relevant matters. It has submitted advice on forthcoming legislation on age and disability and other national policies, such as policies concerning equal payment on the grounds of race and gender. Also, the ETC contributes to (shadow) reports on the implementation of the Netherlands' obligations under international law and advises on European Community law.

Impact of Rulings

The ETA does not oblige applicants to approach the ETC before filing a lawsuit with the court, nor do proceedings before the ETC prevent court action. However, only a few cases considered by the ETC were taken to court after a ruling of the ETC. Sometimes it is necessary to go to court, e.g., to obtain damages, but generally the ETC ruling functions as an alternative to the judiciary. This is sometimes also seen as a disadvantage because the judiciary does not deal with many cases of discrimination to gain experience and expertise in this field.

The rulings of the ETC are not legally binding. In the absence of enforceability, the impact of the Commission's rulings depends on the authority of the ETC. This is not something that comes by itself but depends on the quality of the rulings to convince both the parties involved and the judiciary.

We would not advise any legislator to be as vague on that point as the Dutch legislator has been. It is better to establish some qualification with respect to the status of the enforcement body's rulings¹⁵ or the status of the proceedings.¹⁶

In a parliamentary debate on the ETA, it was suggested that the rulings of the ETC be given some binding force by giving them the status of an expert opinion, which the courts cannot overrule without giving well-founded reasons. The Government rejected this suggestion. Instead, the ETC has been given power to bring a case to court to obtain an injunction prohibiting conduct contrary to the relevant anti-discrimination laws or to obtain an order that the consequences of such conduct be remedied. The ETC is now again seeking support for the idea of giving the rulings the statutory status of an expert opinion that cannot be overruled without well-founded reasons.

The ETC enacted an active policy to monitor compliance with its rulings. If necessary, theETC can arrange a conference between parties or conferences between important actors in the respective branch or umbrella-organisations. On the whole, the results have been positive. Most rulings are taken seriously and several have caused changes in discriminatory practices and regulations. Remarkably, the central and local governments appear to show the most serious resistance against rulings by the ETC.

Mediation

Equal treatment legislation does not specifically mention mediation as a task of the ETC. Stimulating negotiations between parties can be effective in enforcing anti-discrimination law and preventing unnecessary conflict escalation. The Commissioners themselves do not act as mediators, but they may submit a case to a mediator. However, mediation involves consideration of both equality law and other relevant facts and circumstances. This may go much further than the equality aspects of the case. Furthermore, mediation implies that the matter can be negotiated and discrimination cannot be negotiated under any circumstances. Thus, the ETC exercises some caution before promoting negotiations or mediation in a specific case and is planning to design procedural guidelines in case of mediation. Nevertheless, several cases have been settled successfully through mediation each year.

Jurisprudence

In the period from 1994 to 2001, the ETC received over 1600 written complaints, as well as approximately 1000 telephone calls annually, leading to a total of over 1050 written rulings. During the first period, the amount of cases concerning race and nationality slowly increased from less than 10% to more than 30%. In 2001, the percentage of cases on the grounds of race and nationality was 40. Since the contents of these cases vary widely, we will just make a rough outline. Cases on the grounds of religion or political conviction take up 7-10% of the caseload and in many cases can be linked to the ethnic origin of the complainant, such as a case with the headscarf worn by Muslim women as a visual expression of their beliefs.

Incidents concerning religious dress codes constitute problems. In the Netherlands, the wearing of a headscarf has provoked considerable differences of opinion. This discussion's last eruption involved a deputy registrar of a district court: Could she be denied the job because she would wear a headscarf during court proceedings? The ETC ruled in favour of the Muslim woman.¹⁷ In such a case, there is evidence of indirect discrimination based on religion. In this particular case, the ETC considered the objective justification to be insufficient. Thereafter, in response to questions raised in the Lower House, the Minister of Justice announced new legislation prohibiting judges and registrars to show any manifestation of personal beliefs or convictions whatsoever. This meant that wearing a headscarf or any other outer sign of a conviction, religious or not, will be prohibited in the future.

The weight of the headscarf controversy is expressed not only in labour relationships but also within the educational system. In recent years, complaints related to alleged discrimination arising from the wearing of headscarves in a number of contexts have been submitted to the ETC, including during gym classes, in the application process for an internship,¹⁸ or in the performance of an internship.¹⁹ On some occasions, students had to discontinue their chosen course of study.²⁰ The problems surrounding the wearing of headscarves are especially common in secondary vocational training.²¹ Most schools proved not to maintain a specific or sufficiently consistent policy on the subject and mostly took their decisions concerning wearing headscarves on an ad hoc basis.

In the period following the attack on the World Trade Center in New York on September 11, 2001, political discussions in the workplace appeared to get out of hand more easily than before then. Emotions more often led non-Muslim colleagues to criticise Muslims in general or express their fear of Muslim fundamentalism. On several occasions, these discussions had gloomy consequences for the Muslim concerned, for example, early termination of a temporary contract or replacement. Complainants turned to the ETC for protection on the grounds of religion and political conviction. The ETC held that an employer may not react to such incidents by more or less automatically replacing the Muslim colleague.²² The law imposes a duty on the employer to carefully hear both sides before taking any decision in order to separate two quarrelling parties.²³ The ETC also upheld that the general rule that obliges the employer to protect any employee against discriminatory behaviour of any colleague also applies in situations such as these.²⁴

Surveys of the Health and Safety Inspectorate of the Dutch Ministry of Social Affairs and Employment established that the remuneration of workers from racial and ethnic minorities is on average 19% less than that of other workers. Even if this percentage is corrected as a result of the influence of factors such as educational level, racial and ethnic minorities still received around 3% less.²⁵ The first unequal pay case on the grounds of race was posted with the ETC in 1996. During the last couple of years, the percentage of cases on the grounds of race concerning unequal payment slowly mounted to 40% of the number of cases received by the ETC (compared to 60 % based on gender). Before 1996, the amount of cases of discriminatory payment based on gender was 100%. Unequal payment on the grounds of race may be more complicated to prove. The ETC developed some statistically reliable methods to investigate groups of personnel. A recent example was a request coming from a trade union complaining that women working for a horticulture company earned less then their male colleagues for the same work and had less favourable working conditions and fewer opportunities for promotion to jobs demanding physical strength. The Commission found that the pay inequality was the result of the different types of contracts offered to men and women and of the different salary scales applied to men and women. During the investigation, the ETC discovered that workers of Turkish origin were paid less than their Dutch colleagues in the same company.²⁶ The opinion was delivered in 2000. Consequently, the employer refused to refund back pay and the case was then taken to court in a summary proceeding in which an appeal is still pending. More procedures might be necessary to establish compensation. This reaffirms the impression of equal pay cases being difficult to prove and difficult to win in court. The positive side of this was that the case finally drew a great deal of attention to the fact that unequal payment in practise may show a clearly racial background.

Unequal treatment on the grounds of nationality occurs a lot in situations where services are offered that constitute a financial risk for trade and industry. This is the case with rental cars, contracts for mobile telephones and financial services such as credit cards and bank accounts. Refusing service to aliens is in breach of the ETA when it is based solely on their temporary residence permit.

As concerns complaints from Roma, since its inception, the ETC has received only one complaint from a Romani woman who stated that she was turned down by an insurer because of her ethnicity. After an investigation, the Commission decided that the refusal had taken place on objective grounds and did not constitute unequal treatment.²⁷ An interesting question is whether or not a caravan dweller falls under the scope of the ETA. The ETC concluded in four cases that people with the tradition of living in wheel houses can be protected by the concept of the term race. Nevertheless, two complaints against (local) governmental policy were not dealt with due to the limitations imposed by the ETA with regard to actions of the central and local governments. Thus, the Commission could not give an opinion on the matter of the cases themselves.²⁸ Two other complaints concerned a refusal to deliver goods to a caravan camp because of the alleged safety risk to the workers and company goods. Based on the specific circumstances of the claims, the Commission is of the opinion in one case that there was an objective justification for the refusal,²⁹ but in the other the ETC ruled that the behaviour was in violation of the law.³⁰

First Evaluation

The law requires the ETC to evaluate the effect of the equal treatment legislation every five years and to present a report to the Minister of Interior. A report was submitted for the first time in 2001. The law faculty of the University of Nijmegen conducted the evaluation research.³¹ The ETC itself has also presented its viewpoint in a report to the government.³² Periodically evaluating the effectiveness of the legislation is important. The ETA will be amended in various sections in the following period as a result of the evaluation as well as of the Race Equality Directive.

The University of Nijmegen researchers paid attention to the social effects of the law.³³ Through examination of the law, the main observations of the research were that exclusion takes place in regard to the provision of public goods and services, that specific sanctions are almost entirely lacking and that protection against victimisation only exists in cases of dismissal.

With respect to the social effect of the equal treatment legislation, the main conclusions of the Nijmegen research were that most rulings of the ETC had been complied with. However, the general public is rather unfamiliar with the Act, with the complexity of the provisions and with the Commission. Almost half of the complaints about discrimination on the grounds of race or nationality had been filed with the assistance of one of the approximately 40 local anti-discrimination bureaus throughout the country.

Concluding Remarks

The effectiveness of the law depends not only on the norm, but also on procedural measures such as burden of proof, group actions and summary procedures and other supportive actions such as anti-discrimination bureaus, employers and employees organisations and other institutions.

Some 25 years³⁴ of experience of equal treatment laws has reaffirmed that this kind of legislation is not "instrumental"; there is no direct and effective link between the legislators setting the norms and the individuals conforming to them. A special "enforcement institution" (e.g. the ETC) should help to improve the effectiveness of this kind of legislation. The Race Equality Directive requires the establishment of specific enforcement agencies or bodies like the ETC and many European countries already have some kind of a national institution. In the Netherlands, it took many years to build the ETC into the institution that exists today. Discussion about the jurisdiction and functions of the ETC is ongoing. The new political situation in the Netherlands might also shape the discussion.

The existence of a legal framework alone does not necessarily lead to action challenging discrimination. A rights approach offers a normative vocabulary that facilitates both the framing of claims and the identification of the rights holder. Legislation such as the Dutch ETA enables individuals to make a claim to equality. Furthermore, the outcome of a procedure may not always be satisfactory, as some of the above mentioned cases following September 11, 2001, illustrate. In those procedures, the employees won their cases and were entitled to compensation, but lost their jobs. And not much fantasy is required to imagine that the effect of the procedure was not a better understanding between Muslim and non-Muslim co-workers or the disappearance of either fear of Muslim fundamentalism on one hand or fear of repeated discriminatory behaviour against Muslim citizens on the other. More dedication is needed to reach mutual understanding. We believe that a specialised body can play a role in this understanding, if it also includes meditative or conciliatory procedures for plaintiffs and defendants.

The first step is to set the standards through legislation. The second step must be to create an environment in which minority issues can and will be discussed with respect.

Literature

Asscher-Vonk, Irene, and Kees Groenendijk. Gelijke behandeling: regels en realiteit. Evaluation Report I, SDU Publishers, 1999.

Dierx, Janny. "The Incorporation of Equality in Dutch Legislation and the Experiences of the Equal Treatment Commission". International Seminar Talinn, Estonia: Non-Discrimination, Minority Rights, and Integration in Estonian Society, 11-12 January, 2001.

Dierx, Janny. "Equal Pay in Dutch Legislation and the Experiences of the Equal Treatment Commission". International Conference Equal Pay, Berlin, Germany, 17-19 June 2002, see http://www.equalpay.de.

Equal Treatment Commission. Gelijke behandeling in beweging. Evaluation Report II, 2000.

Goldschmidt, Jenny and Lilian Gonçalves-Ho Kang You. "Enforcement of Equal Treatment: the Role of the Equal Treatment Commission in the Netherlands." In MacEwen, Martin, ed. Anti-Discrimination Law Enforcement: a Comparative Perspective. Aldershot, Avebury, 1997.

Loenen, Titia and Peter Rodrigues, (eds.). Non-Discrimination Law: Comparative Perspectives. Kluwer Law International, The Hague, London, Boston, 1999.
Rodrigues, Peter. "The Dutch Experience of Enforcement Agencies: Current Issues in Dutch Anti-Discrimination Law". In MacEwen, Martin, (ed.). Anti-Discrimination Law Enforcement: a Comparative Perspective. Aldershot, Avebury, 1997.

Endnotes: 

1. Janny Dierx is currently a member of the Dutch Equal Treatment Commission (ETC). Before joining the ETC in 1994, she was a lawyer, an "ombudswoman" for the National Ombudswoman Foundation and a civil servant at the Ministry of Social Affairs and Employment. She is also a registered mediator. Dr Peter R. Rodrigues is a lawyer and head of the Research and Documentation Department at the Anne Frank House (Amsterdam). He is a member of the Dutch Standing committee of experts on international immigration, refugee and criminal law and member of the Advisory Board on Reception and Integration of the Dutch Refugee Council. He served as Commissioner at the Dutch Equal Treatment Commission from April 1995 until September 2000. Peter Rodrigues is a member of the Legal Advisory Network of the ERRC.
2. Algemene Wet Gelijke Behandeling, 1 September 1994. The full text of this Act can be downloaded from the English Section of the ETC website at http://www.cgb.nl.
3. See for example, Case C-237/94, John O'Flynn v. Adjudication Officer, [1996], ECR I-2631.
4. See ETC 1999-42, 1999-87, 1999-91. The requirement to speak fluent Dutch was not considered to be justified for a employee at a carwash or for a hotel maid. The District Court of Amsterdam ruled that an employer may demand her personnel to speak Dutch in the office, considering the improvement of communication and the atmosphere at work as a legitimate goal (District Court of Amsterdam, 3 November 1999, JAR 1999, 252).
5. See for example, Case C-343/92, M. A. De Weerd, née Roks, and others v. Bestuur van de Bedrijfsvereniging voor de Gezondheid, Geestelijke en Maatschappelijke Belangen and others, [1994] ECR I-571 and Case C-200/91, Coloroll Pension Trustees Ltd v. James Richard Russell, Daniel Mangham, Gerald Robert Parker, Robert Sharp, Joan Fuller, Judith Ann Broughton and Coloroll Group plc. [1994], ECR I-4389.
6. See ECJ rulings in Kalanke C-450/93, [1995], ECR I-3051; Marshall C-409/95, [1997] ECR I-6363; Badeck, C-158/97, [2000] ECR I-01875, and Abrahamsson, C-407/98, [2000] ECR I-05539, available at: www.curia.eu.int. See also Veldman, A. "Preferential Treatment in European Community Law: Current Legal Developments and the Impact on National Practices". In Loenen and Rodrigues (eds.). Non-Discrimination Law: Comparative Perspectives. The Hague, London, Boston: Kluwer Law International, 1999, p. 279.
7. This may change under the regime the ECJ might apply under the Race Equality Directive.
8. The most important cases are ETC 1999-31 and 1999-32.
9. See ETC 1996-9, 1996-22 and 1996-62.
10. District Court Leeuwarden 4 August 1999 (11,500 Euro compensation awarded).
11. District Court Den Haag 12 September 2001 (950 Euro compensation awarded).
12. Section 162 Book 6 Civil Code.
13. District Court Assen 14 October 1997, JAR 1997, 240.
14. See United Nations, CERD, Concluding observations of the Committee on the Elimination of Racial Discrimination: Netherlands. 30/03/98. CERD/C/304/Add.46, para. 14.
15. This has been strongly criticised in the evaluation report on the ETA, Asscher-Vonk and Groenendijk, 1999.
16. See Van den Haak, H. Rechter en/of Commissie gelijke behandeling? Vonnis en/of oordeel? DKZet, Hapert, 2002. He argues for the incorporation of a special anti-discrimination chamber in the courts.
17. ETC 2001-53.
18. ETC 1999-103.
19. ETC 2000-75.
20. ETC 1999-76.
21. ETC 2000-75.
22. ETC 2000-63.
23. ETC 2002-127.
24. ETC 2002-84.
25. ETC 2002-62.
26. Spijkerman, R. De positie van allochtonen en autochtonen in het bedrijfsleven en bij een deel van de overheid in 1998. Ministerie van Sociale Zaken en Werkgelegenheid, Den Haag : Elsevier Bedrijfsinformatie, 2000.
27. ETC, 2000-09.
28. ETC 1999-17.
29. ETC 1997-10 and 1998-99.
30. ETC 1997-120.
31. ETC 1999-95.
32. Asscher-Vonk, I.P. and C. E. Groenendijk. Gelijke behandeling: regels en realiteit. SDU Publishers, 1999.
33. ETC. Gelijke behandeling in beweging/Evaluatie van vijf jaar Algemene wet gelijke behandeling. Utrecht, 2000.
34. See also, Havinga, T. The Effects and Limits of Anti-Discrimination Law in the Netherlands". In International Journal of the Sociology of Law, Volume 30, Issue 1, pp. 75-90, 2002.