Preventing discrimination in the labor market
Discrimination is (unfortunately) the order of the day. So too in the labor market. Especially in recruitment and selection procedures. One of the best known examples is perhaps that of Jeffrey Koorndijk. After applying for a job, he accidentally received an internal e-mail containing the reason for the rejection: ‘Took another look is nothing. First of all a dark colored (Negro). And on his resume little to no experience with computers etc.’
Not only does racial discrimination take place. (Indirect) discrimination based on age, gender and religion are also common.
Discrimination Ban
Discrimination in the labor market is prohibited. This stems from various international treaties, European regulations and, in the Netherlands, is enshrined in the Constitution. Further rules are elaborated – among others – in the General Equal Treatment Act. This law includes the prohibition on making distinctions based on religion, sex and nationality. This applies to both direct and indirect distinctions.
Application Code
There is also a so-called NVP Job Application Code, drawn up by the Dutch Association of Personnel Management & Organization Development in cooperation with the Labor Foundation. This code contains basic rules for organizations and applicants that should be followed when filling vacancies. This code is not mandatory, but it is seen as a guide for recruitment and selection. The Job Application Code was updated to reflect the digital age in early 2020.
Blieb, blieb
Despite these rules, discrimination still occurs in recruitment and selection procedures. To combat this, more and more procedures are using artificial intelligence or algorithms. There is even a (gender-neutral) robot – called Sigmund – in the making that can conduct job interviews. This is to prevent applicants from being rejected based on prejudice, resume or state of mind. ‘Blieb, blieb, you’re through to the next (job) round!’ So is that the future?
Bill monitoring equal opportunity in recruitment and selection
Existing laws and regulations rely on self-regulation. Legislation is interpreted by civil courts and the Human Rights Board. Monitoring and enforcement is lacking. In order to make employers more aware of and prevent labor market discrimination, the Equal Opportunities in Recruitment and Selection Supervision Bill was drafted and submitted.
This endorses the norm that there should be no discrimination in recruitment and selection.
Enforcement and fines
The bill also gives the Inspectorate SZW the power to monitor compliance with this standard and to impose a sanction in case of non-compliance. The proposal requires employers and intermediaries to have a working method aimed at preventing discrimination in recruitment and selection of employees. Employers with 25 or more employees must document this practice in writing. When hiring workers externally, an employer must also verify compliance with this obligation.
The Inspectorate SZW ensures that employers have such practices. If this is lacking, the Inspectorate can impose a fine for this, which is then also made public. The Working Conditions Act (Arbowet) and the Workforce Allocation by Intermediaries Act (Waadi) are being amended for this bill.
Content working method
What the content of this working method should then be is not yet clear. The explanatory memorandum to the bill suggests that the working method can be fleshed out and concretized through “interventions and methods such as: making recruitment materials neutral, try-outs, tests validated by the Test Affairs Committee Netherlands, references and recommendations, an initial selection based on objective job requirements, structured interviews and objectification of decision-making through panel decision-making and/or use of an independent third party.
Incidentally, the introduction of such a method should be submitted to the Works Council or Staff Representatives. If these are not present, the subject will have to be discussed during the staff meeting(s). A period of nine months applies from the date the law comes into force.
What does this mean for practice?
At this point, nothing concrete needs to be done. Of course, it is always good to take a good look at the current procedures within your company. Think, for example, of vacancy texts used and checklists used during application rounds.
The bill has been submitted to the House of Representatives and may yet be amended. The Labor Law Practice Group will follow developments closely. If there are (relevant) developments, we will notify you.
