Discrimination during a job application process is not always prohibited

Making distinctions during a job application process is sometimes permitted, but only under strict conditions — for example, through a preferential policy for a disadvantaged group. Such a policy must be disclosed in advance and may not exclude candidates beforehand. Failure to follow the rules constitutes prohibited discrimination. Below, you can read when affirmative action is permitted and what other exceptions exist.

Is it allowed to discriminate during a job application?

In principle, discrimination in recruitment and selection is prohibited, but there are strictly defined exceptions. Under certain conditions, an employer may implement a preferential policy or make distinctions in specific cases. It is important that this is clearly communicated in advance and that all legal requirements are met.

What is a preferential policy?

With a preferential policy, the employer deliberately gives preference to a specific group, for example women or candidates with a migration background. This is also known as positive discrimination. Such a policy is legally permitted, but only within clear limits.

Conditions for a preferential policy

According to the law, a preferential policy may only be applied to three groups:

• women;
• persons belonging to a specific cultural or ethnic minority group;
• people with a disability or chronic illness.

In addition, the policy must meet the following requirements:

• Demonstrable disadvantage: for example, significantly fewer women than men work there, or fewer people with a migration background than at comparable companies in the region.
• Transparency: the preferential policy must be communicated in advance.
• Equal suitability: preference may only be decisive for candidates of equal suitability. If a candidate from the non-preference group is better suited, they may not be disadvantaged.
• Proportionality: the measure must be proportionate to the objective.

Therefore, you may not exclude candidates in advance or pursue a preferential policy for groups that have not been designated.

The Human Rights Council can intervene

Anyone who believes they have been unlawfully disadvantaged by a preferential policy can ask the Netherlands Institute for Human Rights whether the policy has been applied correctly. In one case (judgment number 2023-8), a man was not invited for an interview because a preferential policy for women applied: the Supervisory Board already contained four men and one woman.

The Board found the objective legitimate and ruled that the requirements regarding disadvantage and transparency had been met. Nevertheless, there was prohibited discrimination on the grounds of sex, because the candidate should not have been excluded in advance.

The lesson: even a preferential policy that is permissible in itself becomes unlawful if candidates are excluded without individual assessment.

Other permitted exceptions

In addition to the preferential policy, there are other situations in which discrimination is permitted:

• Safety: some activities are too dangerous for minors, who may then be excluded.
• Essential job requirement: sometimes only a man or woman is suitable — for example, for a film role where authenticity plays a role.
• Health: for health reasons, people with certain illnesses or disabilities may be refused for specific positions.
• Belief or conviction: a philosophical organization may set requirements regarding conviction for certain positions, provided that this is an essential requirement. A Reformed hospital, for example, may require this of nurses, but not of an office or kitchen employee.

Frequently Asked Questions

Is positive discrimination allowed?

Under strict conditions, yes, via a preferential policy for one of the designated groups (women, ethnic minorities, people with a disability or chronic illness), provided there is a demonstrable disadvantage, the policy is known, and candidates of equal suitability are compared.

Am I allowed to reject a man because I am looking for a woman?

Only within a correct preference policy and subject to equal suitability. You may not exclude male candidates in advance, as the Board confirmed in ruling 2023-8.

Am I allowed to make distinctions based on faith?

Only if the conviction is an essential job requirement, such as for certain positions within a philosophical organization. For positions without that necessity, it is not permitted.

What happens if I break the rules?

In that case, there may be prohibited discrimination. An aggrieved candidate can take the matter to the Netherlands Institute for Human Rights or to court.

Unsure about your recruitment policy?

The rules regarding discrimination in job applications are strict, and mistakes are easily made. We assess whether a preferential policy or exception is permitted in your situation and ensure that you meet all requirements.

Our employment law are happy to assist you. Schedule a no-obligation intake consultation.