Discrimination recruitment process is a topic that regularly requires attention. The Netherlands Institute for Human Rights (College voor de Rechten van de Mens, hereinafter: the Institute) regularly rules on complaints about unequal treatment in recruitment and selection.
Two recent rulings, issued within weeks of each other, illustrate well how the Institute assesses such cases and how differently the outcome can turn out: in one case discrimination was established, in the other it was not, despite a fact pattern that at first sight looked concerning. Both rulings are discussed below, with as clear a distinction as possible between the established facts, the parties’ positions and the Institute’s assessment, followed by the main lessons for employers and a number of frequently asked questions.
Ruling 2026-96: Takko Nederland B.V. discriminates against an applicant with a chronic illness
Date of ruling: 19 June 2026. File number: 2025-0411. The full ruling can be consulted via https://oordelen.mensenrechten.nl/oordeel/2026-96/99a198f0-e2c9-4844-807c-2e88eae96e1f.
The facts
A woman applied to Takko Nederland B.V. (hereinafter: Takko), active in the retail trade of clothing and fashion accessories, for the position of store manager. She wore a feeding tube due to a chronic illness. After a first interview with a store manager on 16 April 2025, she was invited for a second interview, which took place on 13 May 2025 with an Area Sales Manager. At the end of this second interview, she was told that she had not been selected for the position.
On 21 May 2025, the woman submitted a discrimination complaint by email. She stated that the Area Sales Manager had asked discriminatory questions and made comments about her medical situation throughout the entire interview, and that hardly any questions had been asked that related to the content of the position.
Specifically, this included the questions “How did you get that?” and “Do you experience any further limitations because of your illness and the tube?”, the question whether Takko “would receive a subsidy” if it hired her, and the remark that wearing the tube “was not very presentable”. When the woman indicated that she did not experience any limitations in carrying out her work, the Area Sales Manager responded: “Well, I do think so”, referring to a situation in which a clothes hanger could get caught on the tube.
On 27 May 2025, Takko stated by email that the Area Sales Manager wanted to call the woman to offer her apologies, and acknowledged that “too direct questions” had been asked which were “inappropriate in hindsight”. That same day, the Area Sales Manager called the woman and said she found it unpleasant that the woman had experienced it this way.
Discriminatie.nl, which supported the woman, subsequently put the complaint to Takko as part of the right to be heard and pointed out that Takko had failed to take a position on the incident and had not provided any feedback on measures taken or still to be taken. On 17 June 2025, Takko stated that it had carried out an internal investigation and held conversations, in which the Area Sales Manager stated that she had not been aware that the questions could be experienced as discriminatory, but did acknowledge that the questions about illness and limitations “were perhaps too extensive”.
This hearing marked the conclusion of this discrimination recruitment process case. The case was heard on 8 May 2026, with the applicant assisted by a consultant from Radar/Discriminatie.nl and Takko represented by, among others, a Country Manager, the Area Sales Manager concerned, a Case Manager and an HR manager.
Discriminatory treatment during the job interview
Treatment plays a major role in discrimination recruitment process matters. The Institute first noted that the prohibition on discrimination in filling a vacant position also means that an employer must refrain from discriminatory treatment: portraying an applicant as inferior or otherwise placing someone in a negative light because of a protected ground such as disability or chronic illness. Takko had acknowledged at the hearing that the Area Sales Manager had in fact asked the questions and made the remarks at issue.
The Institute noted that the Medical Examinations Act does not in any event allow questions about health or any limitations to be asked during a job interview: such questions may only be asked in the context of a pre-employment medical examination, and that may only be carried out by an occupational physician. This Act is precisely intended to ensure that discriminatory considerations play no part in the recruitment procedure. Given the context, nature and tone of the questions and remarks, the Institute ruled that there had been discriminatory treatment on the ground of disability or chronic illness. The Institute noted with appreciation that Takko had acknowledged the conduct and offered its apologies, but this did not affect the ruling.
Discrimination in the rejection for the position
For the question of whether the rejection itself was also discriminatory, the Institute applied the statutory burden-of-proof rule: the applicant must first put forward facts that suggest discrimination, after which it is up to the employer to prove that it has not acted in breach of the law. The Institute considered that the questions asked and remarks made showed that the Area Sales Manager regarded wearing a feeding tube as an obstacle to performing the job, in particular in view of the remarks “Well, I do think so” and that wearing the tube “was not very presentable”. This established a presumption of discrimination.
Takko argued that it had chosen another, more experienced candidate on the basis of job-related considerations, and that the applicant’s medical situation had played no part in this. The Institute ruled, however, that Takko had not sufficiently substantiated this. Under the Institute’s settled case law, discrimination already exists where a protected ground has played a part in a decision, even if it was not the only reason.
Since Takko had not substantiated its position with written documents and had not removed the doubts expressed about the obstacle the tube would supposedly form, the Institute concluded that Takko had not proven that the medical situation had played no part in the rejection. This amounted to prohibited direct discrimination, for which no statutory exception applied.
Inadequate handling of the complaint
Complaint handling is an important part of discrimination recruitment process cases. Finally, the Institute assessed the way in which Takko had handled the discrimination complaint. The statutory framework requires that a discrimination complaint be dealt with promptly and confidentially, that a proper and objective investigation take place with due regard for the right to be heard, and that the outcome be reported back to the complainant.
The Institute ruled that Takko had taken up the complaint quickly and seriously and had taken adequate follow-up measures, such as improving recruitment procedures and training managers. Nevertheless, Takko had fallen short in carrying out an objective investigation: the written communication showed that Takko had repeatedly emphasised that this concerned the applicant’s interpretation, that it had not itself been present at the interview, and that the Area Sales Manager was known as “very empathetic” and had never received complaints before.
In doing so, Takko had not remained sufficiently neutral and had not sufficiently taken the applicant’s position into account. That Takko, after reflection, ultimately acknowledged this at the hearing did not change this finding. The Institute concluded that Takko had failed to meet its duty to handle the complaint carefully, and that this too amounted to prohibited discrimination.
Conclusion
This case shows how costly discrimination recruitment process mistakes can be for an employer. The Institute ruled that Takko Nederland B.V. had made prohibited distinctions against the applicant on the ground of disability or chronic illness on three points: in its treatment of her during the job interview, in the rejection for the position, and in the handling of her discrimination complaint.
Ruling 2026-99: Picnic Technologies B.V. does not discriminate despite an appearance of unequal treatment
Date of ruling: 6 July 2026. File number: 2025-0162. The full ruling can be consulted via https://oordelen.mensenrechten.nl/oordeel/2026-99/743da265-4e1a-4696-98cf-ae15a8f8ed3c.
The facts
This case also concerns alleged discrimination recruitment process, but on the ground of race. A man of Iranian descent, with a non-traditional Dutch-sounding first and last name, applied between January 2023 and March 2025 four times to Picnic Technologies B.V. (hereinafter: Picnic) for the position of Senior DevOps Engineer. In his first application, in January 2023, he was invited under his own name for a telephone introduction. When the recruiter proposed an alternative date, he let her know that this no longer worked for him and that he would let her know when he had time again; contact then stopped. In his second application, in November 2023, again under his own name, he was not invited to the second round.
On 4 March 2025, he applied a third time, again under his own name. On 11 March 2025, he received a rejection by email, giving as the reason that other candidates “were a better fit” for what Picnic was currently looking for, and asking him to wait a year before reapplying. A day later, on 12 March 2025, he applied again for the same position, with an almost identical CV, but now under a fictitious, traditionally Dutch-sounding name. On 19 March 2025, he was invited on this basis for an interview; the recruiter — the same one who had also handled the earlier applications — wrote that she saw several points in the CV that matched what Picnic was looking for.
On 20 March 2025, the man confronted the recruiter, with HR management in bcc, with the fact that he had been rejected and invited respectively with the exact same CV under a different name, and concluded that names apparently played a bigger part in the hiring decision than actual qualifications. Picnic did not respond to this email. The case was heard on 1 June 2026, with the applicant assisted by a Farsi/Persian-Dutch interpreter and Picnic represented by a legal counsel and a sustainability lead.
Presumption of discrimination on the ground of race
The concept of ‘race’ is interpreted broadly by the Institute, in line with the International Convention on the Elimination of All Forms of Racial Discrimination, and also covers descent and ethnic origin. The applicant could therefore rely on the General Equal Treatment Act (Algemene wet gelijke behandeling).
The Institute established that, in the rejection of 11 March 2025, Picnic had selected on the basis of criteria — mentality and drive — that were not included in the vacancy text, and that this had not been communicated back to the applicant. According to the Institute’s settled case law, a recruitment procedure that is insufficiently transparent and verifiable in this way can contribute to a presumption of discrimination, but is not sufficient on its own; additional facts are required for that.
Those additional facts were present in this case: the applicant had consistently applied for the same position, the CVs submitted for applications 3 and 4 were virtually identical and were assessed by the same recruiter, Picnic acknowledged that the applicant was, on the basis of his CV, suitable for the position, and within a period of only two weeks he was rejected under his own name and invited under a fictitious Dutch name.
These facts, seen in conjunction with the deficient procedure, led to a presumption of discrimination on the ground of race. This shifted the burden of proof to Picnic: it had to prove that the applicant’s descent had played no part whatsoever, not even a partial one, in the rejection.
Picnic’s rebuttal of the presumption
Evidence is crucial when rebutting discrimination recruitment process claims. In rebuttal, Picnic submitted an email exchange from February 2023, as well as a written statement from the recruiter concerned. According to Picnic, these showed that the recruiter had, both in 2023 and in the third application in 2025, initially assessed the applicant’s CV positively — even after she became aware of his non-traditional Dutch name.
Picnic stated that the recruiter only came across the 2023 email exchange upon closer examination of the earlier rejection from November 2023, from which, in her view, a lack of motivation and reliability on the applicant’s part emerged: he had at the time indicated that he was no longer interested and had not sought further contact himself. This was, according to Picnic, the actual reason for choosing other candidates in the third application. For the fourth application, under the fictitious name, no application history was known, according to Picnic, so that this application led to an invitation on the basis of the CV alone.
The Institute weighed this explanation on a number of points. Decisive was that the same recruiter assessed both applications and that her appreciation of the CV itself, apart from the application history, was positive in all instances: according to the Institute, the distinction therefore did not lie in the qualifications, but in what the recruiter knew about the earlier application.
That the 2023 email exchange predated by some margin the point at which discriminatory conduct could be at issue, and that its content — the applicant breaking off contact himself — was not open to more than one interpretation, made the explanation, in the Institute’s assessment, consistent and verifiable. That no comparable application history was known for the fourth, fictitious application moreover explained why that particular application, despite the earlier rejection, did lead to an invitation. According to the Institute, these interlocking facts left little room for an alternative explanation in which the applicant’s descent, rather than his application history, was the real reason for the rejection.
The Institute emphasised that a diverse workforce does not in itself prove that discrimination cannot have occurred in an individual case: group statistics say little about the background of one specific decision, and the composition of a workforce can be influenced by a variety of other factors. A concrete, individual substantiation of the decision being complained about is therefore always required.
Picnic had provided that substantiation in this case, with the recruiter’s statement and the further explanation given at the hearing; the diversity of the workforce was at most a supporting circumstance in this, not the decisive evidence. The Institute concluded that Picnic had shown that it was not the applicant’s descent but his application history that had been the reason for the rejection in the third application. Picnic had thereby rebutted the presumption of discrimination, and there was no discrimination on the ground of race.
Recommendations despite the absence of discrimination
Even without established discrimination recruitment process, care remains essential. Although the Institute did not establish discrimination, it did consider it relevant that Picnic’s deficient communication — including the failure to respond to the applicant’s confronting email — had given him the impression that his descent had played a part. That silence did not change the outcome in this case, because Picnic rebutted the presumption of discrimination with other, stronger documentation.
For employers, that is no free pass: where such documentation is lacking, that same silence can actually strengthen rather than weaken a presumption of discrimination, and can, regardless of the eventual legal outcome, lead to escalation, reputational damage and a weaker starting position in any follow-up proceedings.
The Institute therefore made a number of recommendations to prevent this appearance in future: always including in the vacancy text any job requirements that matter, always ending an ongoing application process with a written rejection letter, informing candidates who are rejected at a later stage of the actual reason for this, providing feedback when candidates express dissatisfaction with the procedure, and aligning the retention period for application data with the guidelines of the Dutch Data Protection Authority (Autoriteit Persoonsgegevens, AP).
The AP, the supervisory authority for compliance with privacy legislation, advises deleting the data of a rejected applicant no later than four weeks after the end of the application procedure, unless the applicant consents to a longer retention period; a period of up to one year after the end of the procedure is considered reasonable for this.
What do these rulings teach employers?
These two discrimination recruitment process cases show that outcomes can differ significantly. Both cases show the same statutory burden-of-proof mechanism: the applicant does not need to provide conclusive proof of discrimination, but must put forward facts that suggest discrimination. Once that presumption is established, it is up to the employer to show that it has not acted in breach of equal treatment legislation, meaning that the protected ground played no part — not even a partial one.
The difference between the two cases did not lie in the severity of the facts giving rise to a presumption, but in the extent to which the employer was subsequently able to rebut that presumption. What mattered was not solely whether the substantiation was in writing, but whether it was coherent, consistent, timely and verifiable: in the Picnic case, the recruiter’s oral statement and her explanation at the hearing also contributed to this.
To prevent discrimination recruitment process issues, the following applies. For practice, this means, among other things:
- do not ask questions about health, illness or limitations during a job interview, even with good intentions — such questions may only be asked by an occupational physician, and only in the context of a pre-employment medical examination; questions about availability, deployability or the practical performance of the work remain permitted, provided they do not indirectly ask about the candidate’s health
- set selection criteria in advance, ensure they are relevant and job-related and align with the vacancy text, and apply them consistently, so that you can explain their application afterwards
- give written reasons for rejections and keep this reasoning and the underlying correspondence, so that you can produce it in the event of a complaint or proceedings
- handle discrimination complaints with an independent and objective mindset, without siding with the employee concerned in advance, and consistently apply the right to be heard
- if there is doubt about the composition of the workforce, document not only the outcome but also the individual considerations for each applicant, since diversity in general terms is insufficient to rebut an individual complaint
Frequently asked questions about discrimination recruitment process
What exactly does the Netherlands Institute for Human Rights do?
When it comes to discrimination recruitment process, this is the competent body: The Institute is an independent body that rules on complaints about unequal treatment, among other things on the grounds of disability, chronic illness, race, sex, age and religion. A ruling of the Institute is not binding in the way a court judgment is, but in practice carries significant weight and is often followed by courts.
May an employer ask about a candidate’s health during a job interview?
No. The Medical Examinations Act provides that questions about health, illness or limitations may only be asked in the context of a pre-employment medical examination, and that this may only be done by an occupational physician. Such questions during a regular job interview are therefore not permitted, regardless of the intention behind them. Questions about a candidate’s availability or deployability, or about the practical performance of the work, remain permitted, as long as they do not indirectly ask about the candidate’s health.
When is there a presumption of discrimination?
This is a central question in discrimination recruitment process cases. A presumption arises when the applicant puts forward facts that make discrimination on a protected ground plausible. This can, for example, include inconsistencies in the procedure, discriminatory statements, or a difference in treatment between comparable applications, such as in the Picnic case the difference in treatment of virtually identical CVs under a different name. Once a presumption has been established, the burden of proof shifts to the employer.
How can an employer rebut a presumption of discrimination?
Rebuttal is key in discrimination recruitment process disputes. The employer must show that the protected ground played no part, not even a partial one, in the decision. Documentation such as written statements, email exchanges and recorded selection criteria helps with this, but is not automatically decisive: what ultimately matters is whether the substantiation is coherent, consistent, timely and verifiable. In the Picnic ruling, for instance, the recruiter’s oral statement and her explanation at the hearing also contributed to the rebuttal. A general statement that another candidate was more suitable, as Takko argued, is insufficient if it is not substantiated with concrete, verifiable evidence.
Is a diverse workforce sufficient proof that no discrimination has taken place?
This matters for discrimination recruitment process assessments too. No. Group statistics say little about one individual decision: the Institute explicitly considered that a diverse workforce does not rule out that discrimination may have occurred in an individual case, and that the composition of a workforce can be influenced by a variety of factors. It can at most contribute to the overall body of evidence, as in the Picnic case, but must always be supplemented with a concrete, individual substantiation of the decision at issue.
What must an employer do when faced with a discrimination complaint from an applicant?
A careful approach to discrimination recruitment process complaints matters greatly. A complaint must be handled promptly, confidentially and objectively. This includes a proper investigation with due regard for the right to be heard, clear feedback on the outcome to the complainant, and a response that does not side with the employee concerned in advance — precisely the point on which Takko, despite an otherwise prompt approach, fell short.
What consequences does a ruling of the Institute have for an employer?
The impact of a discrimination recruitment process ruling can be significant. A ruling of the Institute is not the same as a binding court judgment and does not automatically result in an order to pay damages. It does, however, form an important piece of substantiation for any follow-up proceedings before a court, for example a claim for damages, because courts in practice often follow the Institute’s rulings. In addition, a ruling that prohibited discrimination has occurred can, regardless of any proceedings, lead to reputational damage and to consequences for the employer’s policy and compliance. The Institute also often makes recommendations to prevent recurrence, as was the case in both rulings discussed here, including in the Picnic case in which no discrimination was established.
Can an employer still use earlier doubts about a candidate’s motivation or reliability as grounds for rejection at a later stage?
Motivation plays a nuanced role in discrimination recruitment process assessments. Yes, provided this can be substantiated with concrete documents and the protected ground demonstrably played no part in this. In the Picnic case, the Institute accepted that an earlier lack of motivation, documented in an email exchange, justified the later rejection, despite the appearance created by the different treatment of applications under a different name.
Prevention is better than cure: a careful approach to discrimination recruitment process reduces legal risks significantly. Are you an employer facing a discrimination complaint, or would you like your recruitment procedure reviewed for discrimination risks? Please feel free to contact Law & More for advice.
