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 Dutch Civil Code

Section 7.10.4 Equal treatment


Article 7:646 No discrimination on the basis of gender (equality between men and women)
- 1. Employers may not discriminate between men and women when entering into an employment agreement, nor when providing training for employees, determining the terms and conditions of employment, deciding on promotion, or terminating an employment agreement.
- 2. As far as it concerns the subjects of entering into an employment agreement or the provision of training, it is possible to derogate from paragraph 1 if the discrimination is based on gender related characteristics which, in view of the nature of the specific work to be performed or of the context in which this work has to be performed, forms an essential and decisive professional requirement, provided that the objective is legitimate and that the requirement is in proportion to this objective. Section 5, Subsection 3 of the Equal Treatment (Men and Women) Act applies accordingly.
- 3. It is permitted to derogate from paragraph 1 if it concerns conditions or stipulations related to the protection of women, particularly in connection with pregnancy or motherhood. 
- 4. It is permitted to derogate from paragraph 1 if it concerns conditions or stipulations which intend to place female employees in a privileged position in order to eliminate or reduce existing disadvantages, and the discrimination is in reasonable proportion to this objective.
- 5. In the present Article by:
a. 'discrimination' is understood a direct or indirect discrimination as well as an instruction to apply such discrimination.
b. 'direct discrimination' is understood the situation in which a person is or would be treated differently on the basis of his gender than another person in a similar situation, on the understanding that indirect discrimination includes also a discrimination on the basis of pregnancy, childbirth or motherhood.
c. 'indirect discrimination' is understood the situation in which an apparently neutral provision, standard or method affects, in comparison to other persons, in particular persons of a certain gender. 
- 6. The prohibition of direct discrimination, laid down in the present Article, includes also a prohibition of harassment and a prohibition of sexual harassment. 
- 7. By 'intimidation' as meant in paragraph 6 is understood: behaviour related to the gender of a person and of which the purpose or effect is the violation of a person's dignity and the creation of an intimidating, hostile, degrading, humiliating or offending environment. 
- 8. By 'sexual intimidation' as meant in paragraph 6 is understood: any form of verbal, non-verbal or physical behaviour of a sexual nature of which the purpose or effect is the violation of a person's dignity, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment.
- 9. An employee who rejects or passively submits to the behaviour meant in paragraph 7 and 8, may not be treated adversely by the employer. 
- 10. The prohibition of discrimination, laid down in paragraph 1, does not apply to indirect discrimination that is objectively justified by a legitimate objective and the means for reaching this objective are appropriate and necessary. 
- 11. A contractual provision in conflict with paragraph 1 is null and void. 
- 12. If a person thinks that he is or has been discriminated to his disadvantage as meant in the present Article and he adduces, in court, facts that give rise to the presumption that such a discrimination indeed has occurred, then the opposite party must prove that he has not acted in conflict with the provisions the present Article. 
- 13. Paragraph 2 and 3 do not apply to a prohibition of harassment and sexual harassment meant in paragraph 6.


Article 7:647 No adverse treatment of employees who invoke ä non-discrimination rule
- 1. A termination of the employment agreement by the employer in conflict with Article 7:646, paragraph 1, on the ground that the employee has invoked Article 7:646, paragraph 1, either in court or otherwise, or that he has assisted someone else to this point, is voidable . 
- 2. If the employee does not invoke the ground of voidability referred to in the previous paragraph within two months after the termination of his employment agreement, then the right to do so has ceased to exist. Article 3:55 of the Civil Code does not apply. 
- 3. A right of action related to the nullification of a voidable termination as mant in the present Article becomes prescribed on the expiry of six months after the day (effective termination date) on which the employment agreement has ended by termination. 
- 4. A termination meant in Article 7:646, paragraph 1, does not make the employer liable for damages. 
- 5. The employer may not treat the employer adversely because of the fact that the employee has invoked Article 7:646, paragraph 1, either in court or otherwise, or because he has assisted someone else to this point.


Article 7:648 No discrimination on the basis of working time (full-time/part-time)
- 1. In the conditions subject to which an employment agreement is entered into, continued or terminated, employers may not discriminate between employees on the basis of a difference in the contracted working hours (full-time/part-time), unless such a discrimination is objectively justified. A termination of the employment agreement by the employer in conflict with the previous sentence or because of the fact that the employee has invoked the provisions of the previous sentence, either in court or otherwise, or because he has assisted someone else to this point, is voidable. Article 7:647, paragraph 2 and 3, apply as well. 
- 2. A contractual provision or stipulation in conflict with paragraph 1 is null and void. 
- 3. A termination as meant in the first sentence of paragraph 1 does not make the employer liable for damages. 
- 4. The Commission, mentioned in Article 1 of the Act for a Commission of Human Rights, may examine whether a discrimination as referred to in paragraph 1 is taking place or has been taken place. Articles 10, 12, 13, 22 and 23 of the Act for a Commission of Human Rights shall apply accordingly. 
- 5. The employer may not treat the employee adversely because of the fact that the employee has invoked paragraph 1, either in court or otherwise, or because he has assisted someone else to this point.


Article 7:649 No discrimination on the basis of indefinite or temporary employment agreements
- 1. In the conditions of employment employers may not discrimate between employees on the basis of the indefinite or temporary character of their employment agreements, unless such a discrimination is objectively justified. 
- 2. A termination of the employment agreement by the employer because of the fact that the employee has invoked the provisions of paragraph 1, either in court or otherwise, or because he has assisted someone else to this point, is voidable. Article 7:647, paragraph 2 and 3, apply as well.
- 3. A contractual provision or stipulation in conflict with paragraph 1 is null and void.
- 4. The Commission, mentioned in Article 1 of the Act for a Commission of Human Rights, may examine whether a discrimination as referred to in paragraph 1 is taking place or has been taken place. Articles 10, 12, 13, 22 and 23 of the Act for a Commission of Human Rights shall apply accordingly.
- 5. The employer may not treat the employee adversely because of the fact that the employee has invoked paragraph 1, either in court or otherwise, or because he has assisted someone else to this point. 
- 6. The provisions of paragraph 1 up to and including 5 do not apply to an employment agency agreement (secondment agreement) as meant in Article 7:690.