“No Moroccans need apply” is discrimination, says ECJ

The Advocate General of the European Court of Justice (ECJ) has confirmed that an employer who makes a public statement about its recruitment policies can commit an act of discrimination, even if those policies are designed to meet customer demands.

In CGKR v Feryn (2008), the Belgian equivalent of the UK Equality and Human Rights Commission accused a door-fitting firm of discrimination after one of the firm’s directors gave a number of press and radio interviews in which he indicated that no immigrants, particularly Moroccans, would be appointed as door fitters because the firm’s customers preferred Belgian workers. He blamed his customers’ views on their supposed fear of crime by immigrants.

The Belgian Employment Court initially ruled that this was only hypothetical discrimination, as no individual had been affected, and the ECJ was invited to rule on the issue.

The Advocate General (whose opinion is followed by the ECJ in around 80% of cases) has confirmed that such a clear statement excludes large sections of the population from applying for a job, and is therefore directly discriminatory.

Any non-Belgian could potentially bring a claim of discrimination, and, bearing in mind that the over-arching purpose of the anti-discrimination Directives is to foster a socially inclusive labour market, it is appropriate for national equality groups to bring such cases where individuals might not be willing to risk retaliation by litigating themselves.

The Advocate General also confirmed that discrimination designed to pander to the prejudices of clients or customers is still discrimination. This is an important reminder for companies who might be tempted to recruit from particular groups to attract customers (for instance, by hiring young trendy shop assistants to appeal to a teenager demographic).