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Despite myriad legal provisions in place in the Netherlands to prevent discrimination, it remains a serious issue, permeating all societal sectors and informing government actions and policies, as the recent childcare allowance scandal has shown. Between 2020 and 2022, ISS Rector Ruard Ganzevoort in his capacity as a member of the Dutch Senate chaired a parliamentary committee of inquiry that examined the effectiveness of anti-discrimination legislation. In this blog article, he discusses some of the key findings of the investigation and names six factors that can be considered when seeking to ensure that existing laws effectively prevent discrimination.

Why is it that discrimination is rampant, even when strong anti-discrimination laws are in place? And not just discrimination by individuals or organizations, but also by government institutions? In the Netherlands, a country often priding itself on its strong (although at least partly imagined) history of tolerance and equality, this has come to the public attention with the childcare allowance scandal, where substantial indications of systemic or institutional discrimination in our social welfare system and our tax system surfaced.

As a member of the Dutch Senate, a position I held until last June, I chaired a parliamentary committee of inquiry on the effectiveness of anti-discrimination legislation. The question the Senate wanted to address is why our legislation seems unable to curb this widespread and systemic discrimination. The first article in the Dutch Constitution explicitly bans discrimination on any ground. We also have specific laws against discrimination on more specific grounds. We have implemented a system for complaints and local institutions to address individual cases. In short, we have extensive policies against discrimination. And yet… discrimination not only persists despite our legislation and policies but sometimes because of them. And it is highly detrimental to our citizens.

The committee looked specifically at discrimination in the domains of 1) the labour market, 2) education, 3) social security, and 4) the police — four domains with a different degree of governmental influence. In each domain, we selected specific issues in discrimination that would help us understand the dynamics so that we can improve the legislative process. In the domain of social security, we looked at two issues: first, the role of algorithms in detecting unlawful use of social support and, second, the fact that certain groups tend to avoid the social security system, even if they are entitled to receive support.

The results of the inquiry were published in June last year and can be viewed here (full report in Dutch) and here (summary in English). Below, I briefly discuss two key findings from the report: that algorithms carry a discriminatory risk, and that people do not access social security provisions available to them in part because the government seems to mistrust eligible persons.

Algorithms can discriminate and pose a risk

The analysis of our investigation highlighted the discriminatory risk of algorithms, especially when prejudice and bias are incorporated into the risk profiles and data sets. Moreover, even relevant and / or seemingly neutral information can contribute to the discriminatory use of profiles and data. A combination of postal codes, IP addresses, and phone numbers for example can indicate ethnicity or nationality and thereby can result in indirect discrimination.

Government distrust may explain failure to access social security provisions

Regarding the non-use of social security provisions, the complexity of the system and the fact that the government seems to mistrust those who need support were found to be important factors. This regards especially those with fewer social-economic resources and people with structural or temporarily impaired capabilities. Although these criteria are hard to define in law, the outcome can be seen as discriminatory.

Six factors to consider for more effective legislation

Analyzing cases from these four domains, the investigation yielded six crucial factors that are not only relevant for the effectiveness of legislation (although that was the focus of the analysis), but also for policies in organizations. In those cases, the word ‘government’ can be exchanged for ‘leadership’.

1. First, trust. Does the government trust or mistrusts its citizens? The fundamental attitude should be that people by and large can be trusted and that in varying degrees they need support. If the government displays fundamental mistrust, this will likely result in discriminatory laws and policies.

2. Second, attention. Does the government display continuous attention for discriminatory processes and outcomes, and does it listen specifically to what people need and experience? Lack of attention puts systems above people and easily results in discriminatory laws and policies.

3. Third, norms and language. Do new laws explicitly refer to antidiscrimination principles and make them concrete? And are implicit norms inclusive enough or do they favor certain groups? Vague and implicit norms can easily result in discriminatory laws and policies.

4. Fourth, simplicity. Do our laws and policies provide transparent, consistent, and integrated criteria and regulations to citizens and institutions, including educators and social services? The complexity of our laws and policies makes it difficult for citizens to claim the support they need, to execute their rights and to file complaints where needed. It also yields space for bias and prejudice and can therefore result in discriminatory laws and policies.

5. Fifth, leadership and accountability. Does the government explicitly make institutions and organizations responsible to curb discrimination and to arrange accountability structures? And do our policies provide for the necessary skills and professional space to use and account for discretionary power and hardship clauses? Failure to do so, especially in situations of unclear norms or conflicting political demands, may result in discriminatory laws and policies.

6. Sixth, clear and effective complaint procedures. Are the possibilities for citizens to complain about certain decisions clear, accessible, and effective? It is not enough to have procedures in place, if people cannot realistically use them. Moreover, this should not be the only safeguard because then only the well-resourced citizens are able to use them which actually increases the risk of discriminatory laws and policies.

Trust, attention, norms, simplicity, leadership and accountability, and clear procedures. Obviously, these principles for legislation and policies are not a foolproof remedy for discrimination. They are, however, an important instrument in addressing the systemic and institutional dimensions of discrimination. They clarify how our legislative processes and organizational policies can willingly or unwillingly result in discrimination, and they show what we can do to reduce that. In the end, of course, they turn out to be just principles for good laws and good policies for all our citizens.

Photo by Jeremy Bishop on Unsplash

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About the author:

Ruard Ganzevoort is rector at the International Institute of Social Studies in The Hague

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