On March 11, 2019, a new Royal Decree entered into force determining the conditions for positive action. Resulting from this new Royal Decree, the organization of fair hiring practices by employers in the private sector will now require an approved plan of affirmative action.
Affirmative action consists of specific measures intended to prevent or compensate for adverse effects related to protected criteria in the anti-discrimination legislation (such as age, sexual orientation, etc.). Measures of affirmative action are exceptions to the principled prohibition of discrimination intended to ensure full equality in practice. Only by eliminating social disadvantages, is the disadvantaged group able to participate fully in the labor process. Contrary to what is often believed, affirmative action is not only focused on hiring practices, but may relate to any stage of the employment relationship, for example recruitment campaigns may be organized to promote recruitment of LGBT persons in institutions where opinions on LGBT are divided; companies may reserve traineeships for certain groups facing social disadvantages or organize training courses to raise awareness of certain problems with (social) inequality.
The affirmative action plan is established by way of a collective bargaining agreement (or by an act of accession thereto) setting out the conditions for such measures. The affirmative action plan must be approved by the Minister for Employment and must contain the following information:
Evidence of a manifest inequality; Clearly defined purpose and concrete objectives of the affirmative action; The intended duration of the affirmative action (with a maximum of three years); Evidence that the intended measures are appropriate and necessary in relation to the objective pursued (proportionality test); and Evidence that...