4.4 Current policy and policy reinforcements – Domains
In a letter to Parliament on reinforcing social safety in schools, the Minister for Primary and Secondary Education indicated that the following two reinforcement goals would be pursued:
- raising the bar in respect of social safety to ensure that all pupils and teachers feel free to be themselves and feel safe;
- improved counseling and aftercare for pupils and parents in case of unexpected setbacks; and
- taking earlier and firmer action where needed.
When working out and pursuing these ambitions, specific attention will be paid to vulnerable pupils such as young LGBTIQ+ persons. This will be based on the question of what needs to be done to increase their actual safety as well as their sense of safety, with a specific focus within general interventions and additional measures tailored specifically to these groups. i
The Ministry of Health, Welfare and Sport has developed the Ministry-wide Discrimination and Equal Opportunities Approach to coordinate efforts to tackle discrimination and promote equal opportunities (with a specific emphasis on discrimination as an impeding factor) as part of the Ministry’s policy. The approach encompasses well-known discriminatory grounds, such as age, gender, sexual orientation, race, religion, nationality, disability, political opinion, marital status or form of labor. It combines bonding and bridging, awareness and knowledge gathering aimed at creating a perspective for action for the Ministry’s policy practice in coordination with parties in the field.
Reducing health differences is a major pillar in the National Health Policy Memorandum, which contains the ambition to increase by 2024 both the life expectancy of people with a low socioeconomic status (SES) and the number of years people with a low or high SES live in perceived good health. Programs such as Healthy in the City (Gezond in de Stad; GIDS) and Promising Start (Kansrijke Start), intended to tackle health differences, contribute to achieving this ambition. The Health in the City support program helps more than 150 municipal authorities to set up a wide and comprehensive approach to reducing health differences. In the Promising Start program, the national government has joined municipal authorities and professionals from the social and medical domains in local coalitions to give as many children as possible a promising start for the first 1,000 days of their lives. The interdepartmental Health Impact Steering Group is also working on an interdepartmental approach to reducing health gaps under the direction of the Ministry of Health, Welfare and Sport. Promoting health skills is a major point of focus of the programs and of center of expertise Pharos.
Prepared and offered to Parliament under the previous Government, the Bill on Monitoring Equal Opportunities in Recruitment and Selection elaborates on the previous coalition agreement and obligates employers and intermediaries to prepare a recruitment and selection procedure containing adequate safeguards for combating discrimination and creating equal opportunities. The procedure must demonstrate that the employer or intermediary has structured the recruitment and selection process in such a way that labor market discrimination is prevented. Recruitment and selection must be based on job requirements relevant to the position, and the procedure must be clear and verifiable and be structured and applied in a systematic manner. The Netherlands Labor Authority will be assigned supervisory powers and – after having imposed a demand for compliance – will be able to impose fines when employers or intermediaries break the rules.
The coalition agreement states that a reporting obligation will be introduced for organizations that engage in discriminatory or racist behavior; this reporting obligation will be added to the bill. The staffing industry is a major player in the labor market and, as such, needs to be involved in tackling discrimination in the labor market. It matches labor supply and demand and plays a role in providing equal opportunities in recruitment and selection procedures.
The reporting obligation requires intermediaries to report to the Netherlands Labor Authority any requests that potentially result in labor market discrimination. This means that intermediaries must have a procedure in place on how to handle discriminatory requests and must follow this procedure in case a request is suspected to be discriminatory, which should combat and prevent discriminatory requests by clients even more. Several routes have been explored in consultation with the staffing industry and other parties to identify a form that is potentially the most effective, in which intermediaries are able to discuss discriminatory requests with clients as part of the procedure for handling discriminatory requests. This will already resolve some of the requests. Where discussions are insufficiently effective, the relevant request must be reported. The Netherlands Labor Authority may follow up on reports by auditing the relevant client’s recruitment and selection policy and – after having imposed a demand for compliance – will be able to impose a fine if the rules were broken. The Netherlands Labor Authority also monitors whether intermediaries have a procedure in place and whether it is properly detailed and followed.
The coalition agreement announces that a “notification requirement, registration requirement or landlord permit” will be introduced, which “will enable local authorities to take more targeted measures to combat discrimination and dishonest landlords”.
Currently awaiting discussion by Parliament, the Good Landlord Practices Bill introduces a national enforceable basic standard for good landlord practices in the form of general rules that will apply to all landlords and letting agencies. One of the rules is intended to prevent and combat discrimination, which entails that landlords and letting agencies must refrain from all types of unjustified distinctions by:
- applying a clear and transparent selection process;
- using objective and non-discriminatory selection criteria and clearly communicating them; and
- providing rejected prospective tenants with reasons for choosing a specific tenant.
Municipal authorities will be charged with the task of taking administrative enforcement action to ensure compliance with the rules in respect of private landlords. In addition to the general rules, municipal authorities will be given the power to implement a permit requirement for the letting of ‘regular housing’ and ‘accommodation for migrant workers’. Aiming to facilitate enforcement by municipal authorities, the bill requires municipal authorities to establish an accessible contact point where tenants, home seekers and others can raise their suspicions of, and lodge complaints about, undesirable behavior by landlords or letting agencies and where they can do so anonymously and free of charge.
The Utrecht municipal authorities are presently exploring whether a reporting obligation would make an effective supplementary instrument in tackling discrimination in the letting of homes. If a landlord submits a discriminatory request to a real estate agent, the latter will be required to report it. The Utrecht municipal authorities have initiated a pilot project to test whether this obligation is legally tenable, effective and feasible in practice and to what extent mystery calls may contribute to enforcement of the reporting obligation. The exploratory study also covers developments in the labor market.
The Act on Extraordinary Measures for Urban Problems (also known as the ‘Rotterdam Act’) offers municipal authorities the possibility of operating a system of selective housing allocation in certain vulnerable neighborhoods. This special measure contributes to better prospects for residents and equal opportunities for children. Research by Erasmus University Rotterdam has revealed that growing up in a vulnerable neighborhood is a clear marker for fewer opportunities in later life. i However, operating a selective housing allocation policy can also have far-reaching consequences for individuals wishing to live in these areas as well, as it restricts freedom of establishment. In their housing allocation policy, municipal authorities can impose requirements on the nature of an individual’s income (Article 8), give priority on the basis of certain socioeconomic characteristics, for example for specific professional groups (Article 9), or screen home seekers for nuisance or criminal behavior (Article 10).
The measures result in more mixed neighborhoods that are less socioeconomically vulnerable. On the other hand, it is difficult to estimate the effects on quality of life, as the intention of this measure is part of a wide-ranging integrated area approach, and external factors also have an impact. i
In applying Article 8, municipal authorities can refuse to grant a housing permit to home seekers without paid employment in specific vulnerable neighborhoods i i in order to create a more balanced socioeconomic composition of the population and counteract excessive income segregation. The European Court of Human Rights has ruled that the application of selective housing allocation pursuant to Article 8 is not in violation of the ECHR and that limiting the freedom of establishment is justified.
In the current criteria of Article 8, a distinction is made between home seekers without paid employment who have lived in the region for six years or more and those who have lived there for less than six years. Only the latter group is negatively affected by the measure, a fact that may also have consequences for newcomers to the Netherlands. In addition, the municipal authorities involved have indicated in the framework of a national evaluation that Article 8 needs to be revised to make it more effective.
The Minister for Housing and Spatial Planning intends to revise the Act on the basis of the evaluation of the Act and possibly the above considerations as well. The Dutch Parliament will be duly informed this autumn.
Tackling discrimination at a local level calls for a multifaceted policy under which signs of discrimination and the corresponding trends are properly taken up in every neighborhood, preventive and repressive measures are implemented and the parties are brought together and involved in the approach. Discrimination also covers many grounds and affects all sorts of areas – such as people’s living environment, schools, sports and the workplace, as well as demonstrations, vandalism at mosques or graffiti in cemeteries – and may affect different groups of people. As a result, efforts to tackle discrimination must cover multiple policy areas and departments of municipal authorities. It is important not only to raise discrimination awareness and create antidiscrimination policies in all these departments, but also to interconnect the approaches adopted by all these parties and to make a single party responsible for the approach taken by the municipal authority as a whole. This means that designating a portfolio holder within each Municipal Executive is advisable; the Ministry of the Interior and Kingdom Relations will discuss this issue with the Association of Netherlands Municipalities and the municipal authorities.
Municipal authorities have a vital task in tackling discrimination. Firstly because they can ensure that the approach to discrimination is truly placed on the political agenda, and secondly because local political bodies are able to free up the human and financial resources needed to provide better care to the victims of discrimination and racism.
The Municipal Executive also has a role to play. The NCDR calls upon all mayors to shoulder responsibility. The Ministry of the Interior and Kingdom Relations plans to analyze whether, how and to what extent municipal coalition agreements contain antidiscrimination policy.
Just like all other forms of discrimination, discrimination in the hospitality sector is incompatible with the prohibition of discrimination and the principle of equality as laid down in our Constitution and as fleshed out in the Dutch Criminal Code, the Equal Treatment Act and other legislation. Article 7 of the Equal Treatment Act includes a prohibition on making an unlawful distinction based on origin or other characteristics when offering goods and services, which includes access to hotel and catering establishments. This means that denying a person access to a hotel or catering establishment because of their origin is not permitted.
Discrimination in the hotel and catering sector may also be punishable pursuant to Article 137g or 429quater of the Dutch Criminal Code, or the person in question may hold the owner of the hotel or catering establishment liable for the loss and damage suffered by instituting civil proceedings.
If discrimination in the hospitality sector is to be tackled, it is of vital importance that recognition of the problem is improved, a behavioral change is brought about in the sector and victims’ willingness to report discrimination is increased. Municipal authorities have an important role to play in the prevention of and fight against discrimination in the hospitality sector, as they can develop policy and can take administrative measures where necessary.
In the spring of 2018, all municipal authorities were offered the Guideline for Antidiscrimination Policy of Municipal Authorities to help them tackle discrimination locally. Referring to the Guideline for Tackling Discrimination in the Hospitality Sector by Municipal Authorities, it describes what municipal authorities can do to combat discrimination in the hospitality sector.
The antidiscrimination agencies and Door Policy Panels are key parties in the process. Discrimination complaints may be reported to these organizations, which may follow up by offering support in the form of a further investigation and mediation. They may also carry out checks on door policies and provide advice.
Being charged with enforcing antidiscrimination rules under criminal law, in its annual report Cijfers in Beeld (‘Figures in the Picture’) the Public Prosecution Service reports on specific discrimination offenses and offenses under general criminal law that have an aspect of discrimination, including offenses committed on the internet.
On December 8, 2021, the European Commission published a proposal containing its intention to expand the list of EU crimes stated in Article 83 TFEU with hate crime and hate speech. Article 83 TFEU encompasses the establishment of common rules for certain criminal offenses included in the first paragraph of that Article, known as ‘EU crimes’; the Commission intends to add hate crime and hate speech to these offenses. Article 83(1) TFEU provides the Commission with a basis for proposing directives. The Dutch Government is in favor of the proposal to add expressions of hatred and hate crimes to the list of Article 83(1) TFEU.
Erasmus University Rotterdam (2020): https://www.eur.nl/nieuws/een-ongelijke-verdeling-van-kansen
Rapport Selectieve woningtoewijzing. Landelijke evaluatie van artikel 8, 9 en 10 van de Wet bijzondere maatregelen grootstedelijke problematiek, RIGO, March 29, 2021; Parliamentary Documents II 2020-2021, 33 340, no. 24.
There are a few exceptions though: the requirement does not apply to young people who are studying (and who are registered with Education Executive Agency DUO) or pensioners. Should a permit be refused, the municipal authorities may apply the hardship clause of Article 8 (and Article 10) of the Act in urgent cases.
If home seekers are not granted a permit, they must still have sufficient options to find appropriate housing elsewhere in the region. The Minister will request the provincial authorities to advise when the application of the municipal authorities is assessed.
Garib v. The Netherlands, ECHR November 6, 2017, case number 43494/09.