Խտրականություն աշխատանքի ընդունման մեջ. ինչպե՞ս է գործում ապացուցման բեռը։

An employer may not make a distinction on a protected ground, such as race, disability or chronic illness, when filling a vacancy. If a rejected applicant puts forward facts that suggest discrimination, the employer must prove that the protected ground played no part at all in its decision.

That rule is laid down in Article 10 of the General Equal Treatment Act (Algemene wet gelijke behandeling, AWGB) and Article 10 of the Equal Treatment on the Grounds of Disability or Chronic Illness Act (WGBH/CZ). An applicant can ask the Netherlands Institute for Human Rights (College voor de Rechten van de Mens) for an opinion without going to court. Two rulings from the summer of 2026, one against Takko Nederland B.V. and one against Picnic Technologies B.V., show how the burden of proof works in practice and why the outcomes differed.

What does the law prohibit during recruitment?

Article 5(1)(a) AWGB and Article 4(a) WGBH/CZ prohibit a distinction in offering a job and in the treatment when filling a vacancy. The AWGB covers grounds including religion, belief, political opinion, race, sex, nationality, sexual orientation and civil status; the WGBH/CZ covers disability and chronic illness.

The prohibition covers more than the final decision. It also applies to how an applicant is treated during interviews, and, according to the Institute, to how the employer handles a discrimination complaint. The Institute interprets “race” broadly, so it includes descent and ethnic origin. For an overview of all grounds, see our article on անհավասար վերաբերմունք հավաքագրման և ընտրության գործընթացում.

How does the burden of proof work?

The applicant does not have to prove discrimination. Under Article 10 AWGB and Article 10 WGBH/CZ, it is enough to present facts that suggest a distinction; the employer must then prove that it did not act in breach of the law.

According to the Institute’s settled approach, discrimination exists as soon as a protected ground played a part in the decision, even if it was not the only reason. A recruitment procedure that is not transparent can contribute to a presumption, but is not enough on its own. Discriminatory remarks, or different treatment of comparable applications, usually are.

May an employer ask about health in a job interview?

No. Under the Medical Examinations Act (Wet op de medische keuringen), a pre-employment medical examination is only allowed if the job imposes special requirements on medical fitness (Article 4(1)). It may only take place after all other assessments, once the employer intends to hire the candidate (Article 4(2)).

Questions about illness or limitations in an ordinary interview therefore fall outside the law. Questions about availability or the practical performance of the work remain allowed, provided they do not indirectly ask about health.

What did the Institute decide in the Takko case?

In opinion 2026-96 of 19 June 2026 (file 2025-0411), the Institute found that Takko had discriminated against an applicant on the ground of disability or chronic illness on three points: during the interview, in the rejection and in handling her complaint. The full opinion is available on oordelen.mensenrechten.nl.

Ի՞նչ փաստեր կային։

The applicant, who wears a feeding tube because of a chronic illness, applied for the position of store manager. In the second interview on 13 May 2025, an Area Sales Manager asked how she got the tube, whether she had further limitations and whether Takko would receive a subsidy if it hired her, and said the tube was “not very presentable”. She was rejected at the end of that interview.

She complained on 21 May 2025. Takko apologised on 27 May 2025 and said on 17 June 2025 that it had investigated internally. The hearing at the Institute took place on 8 May 2026.

Why did the Institute find discrimination?

The questions and remarks portrayed the applicant negatively because of her illness, which is discriminatory treatment in itself. They also showed that the manager saw the tube as an obstacle to the job, which created a presumption that the rejection was discriminatory.

Takko said it chose a more experienced candidate, but did not support this with documents. It therefore failed to prove that the medical situation played no part. Takko did respond quickly and improved its procedures and training, but it repeatedly called the complaint the applicant’s “interpretation” and praised the manager. That fell short of the required objective investigation.

Why did the Picnic case end differently?

In opinion 2026-99 of 6 July 2026 (file 2025-0162), the Institute found a presumption of discrimination on the ground of race, but held that Picnic had rebutted it. The full opinion is available on oordelen.mensenrechten.nl.

Ի՞նչ փաստեր կային։

A man of Iranian descent applied four times between January 2023 and March 2025 for the position of Senior DevOps Engineer. In January 2023 he broke off contact after the recruiter proposed a new date for a call. On 11 March 2025 he was rejected under his own name. On 12 March 2025 he applied with an almost identical CV under a traditionally Dutch-sounding fictitious name, and on 19 March 2025 the same recruiter invited him for an interview.

He confronted the recruiter on 20 March 2025, with HR in copy, but Picnic did not respond. The hearing at the Institute took place on 1 June 2026.

How did Picnic rebut the presumption?

The presumption rested on the identical CVs, the same recruiter, the two-week interval, and selection criteria (mentality and drive) that were not in the vacancy text. The burden of proof therefore shifted to Picnic.

Picnic produced the e-mail exchange from 2023 and a written statement from the recruiter. These showed that she had assessed the CV positively each time, also after seeing his name, and rejected him only after finding that he had earlier broken off contact. For the fictitious application, no such history was known. The Institute found this explanation consistent and verifiable.

The Institute also held that a diverse workforce does not prove that no discrimination took place in an individual case. It recommended that Picnic include all relevant requirements in vacancy texts, close every procedure with a written rejection, give the real reason for late-stage rejections, respond to complaints and align retention of applicant data with the guidelines of the Dutch Data Protection Authority (Autoriteit Persoonsgegevens).

What does an opinion of the Institute mean for you?

An opinion is not legally binding, but courts often take it into account. Under Article 10 of the Act on the Netherlands Institute for Human Rights, anyone who believes a distinction was made to their disadvantage can submit a written request, and an employer can also ask whether its own practice is lawful.

An opinion does not award damages. An applicant who wants compensation must start proceedings before a court, where the opinion can serve as important evidence.

Ի՞նչ պետք է ստուգեք որպես գործատու։

• Remove all questions about health, illness or limitations from interviews and interview guides.
• Set selection criteria in advance, include them in the vacancy text and apply them consistently.
• Record the reasons for each rejection in writing and keep the correspondence.
• Close every application procedure with a written rejection, and give the real reason for rejections at a late stage.
• Investigate a discrimination complaint objectively, hear both sides and report the outcome to the complainant.
• Train recruiters and managers who conduct interviews on equal treatment rules.

Ի՞նչ պետք է ստուգեք որպես դիմորդ։

• Write down the questions and remarks made in the interview as soon as possible, with date and names.
• Keep the vacancy text, your CV, all e-mails and the rejection letter.
• Ask the employer in writing for the reason for your rejection.
• Note whether criteria were used that were not in the vacancy text.
• Submit a complaint to the employer and keep its response.
• Consider a written request to the Netherlands Institute for Human Rights, or proceedings before a court if you want compensation.

What can we do for you with discrimination in recruitment?

մեր աշխատանքի իրավաբաններ advise employers on recruitment procedures and assist applicants who believe they were rejected on a protected ground.

• We review your vacancy texts, interview guides and selection criteria against equal treatment law.
• We assess whether the facts support a presumption of discrimination.
• We draft the request to the Netherlands Institute for Human Rights or the employer’s defence.
• We represent you at the hearing of the Institute.
• We set up or review your internal procedure for discrimination complaints.
• We bring or defend a claim for damages before the court after an opinion.

Ամփոփում

• Article 5 AWGB and Article 4 WGBH/CZ prohibit a distinction on protected grounds when filling a vacancy.
• Once the applicant presents facts that suggest discrimination, the employer must prove that the protected ground played no part at all.
• Health questions in an ordinary job interview fall outside the Medical Examinations Act.
• Takko lost because it could not support its explanation; Picnic won because its explanation was documented, consistent and verifiable.
• Careful handling of a discrimination complaint is part of the employer’s obligations.

Հաճախակի տրվող հարցեր