Language and Physical Requirements in a Job Description: What the Netherlands Institute for Human Rights Has Ruled

What does the Institute test when it looks at a job requirement?

It tests whether the requirement measures the job, not a group.

Dutch equal treatment law forbids distinction when a job is offered, when a vacancy is filled and in placement work by agencies, on grounds that include race, sex and nationality (AWGB, Article 5(1)). Sex is also covered by its own act, which applies the same rule to agencies (WGB, Article 3(1)), and disability and chronic illness by another (WGBH/CZ, Article 4). The Netherlands Institute for Human Rights (College voor de Rechten van de Mens) gives opinions on complaints under these acts.

Direct distinction means a person is treated differently from someone in a comparable situation because of a protected ground (AWGB, Article 1(1)(b)). "Men only" for a warehouse role is an example. The general justification in the act covers indirect distinction only, so direct distinction is allowed only where the law makes a specific exception. For sex, the relevant exception is narrow: a characteristic linked to sex must be a genuine and determining requirement for the specific work, with a legitimate aim and a proportionate requirement (WGB, Article 5(2)).

Indirect distinction means an apparently neutral provision, criterion or practice particularly affects people with a protected characteristic compared with others (AWGB, Article 1(1)(c)). A Dutch language requirement is the standard example: neutral on its face, but harder on people who are not of Dutch origin. It is allowed only if it is objectively justified by a legitimate aim, and the means used to reach that aim are appropriate and necessary (AWGB, Article 2(1)). In the opinions below, the employer or agency has to show that justification.

Two more points from the opinions matter. Intent does not decide the case: the Institute looks at the effect. And a protected ground need not be the only reason for a rejection: if it played a part, the protection applies in full (opinion 2024-54; opinion 2017-49).

In practice, Radius Hire puts the test as two questions to ask of every requirement:

The warehouse case: why a strength rule tied to sex failed (opinion 2024-54)

Because a job can demand strength, but it cannot demand a sex.

In August 2023 a woman applied through a recruitment agency for a cargo and warehouse role. The same day the agency emailed her that she was not placed: the work was physically heavy, the team was entirely male, and she had no experience in the field and no work permit. Before the Institute, the agency said the job meant loading and unloading cargo aircraft at an airport on long, irregular shifts, so it was meant for men only. It also argued that the email was not a rejection and that it had not intended to discriminate.

The Institute disagreed on each point (opinion 2024-54, 25 June 2024):

The opinion does not say the woman would have been placed, and it sets no lifting standard for cargo work. The lesson is narrower and more useful: if the job is heavy, describe the heavy work and check each person against it. A sex, an age or a body type is a guess about a group, not evidence about the person in front of you.

Hiring drivers, couriers or sorters? See how Radius works for logistics roles.

Can a job description require Dutch? The driver case (2017-56) and the translator case (2017-49)

Yes, at the level the tasks need, but not as a mother tongue.

The driver case: Dutch tied to tasks held. A staffing agency recruited drivers for a parcel and express delivery company. After a phone intake in January 2017, the recruiter found an applicant of Romanian origin hard to understand and did not put him forward. The advert had asked for "perfect" Dutch, but the hearing showed the agency meant good command of the language, and the Institute read it that way (opinion 2017-56, 4 May 2017).

Following its settled line, the Institute treated rejection on a requirement of good Dutch as indirect distinction on grounds of race. It then applied the justification test:

The Institute accepted the recruiter's conclusion from the phone intake that his Dutch was not sufficient for this job, which differed from his current driving job. There was no prohibited distinction, but the Institute recommended asking for "good" rather than "perfect" Dutch in future.

The translator case: a native speaker rule failed. Two weeks earlier, the Institute ruled on a freelance English to Dutch translator role at a translation services company (opinion 2017-49, 20 April 2017). The rejection email named the native speaker principle among the selection criteria; other reasons only appeared during the procedure.

Because the native speaker principle had played a part, the Institute found indirect distinction on grounds of race. Translation quality was a legitimate aim, but the rule failed on necessity. The company had relied on its sector association's view that native speakers always master a language better, but the association, when asked, said scientific research had since led to different insights, and the company conceded that the rule excluded candidates whose Dutch was good enough. It should have checked necessity before using the rule. The Institute found a prohibited distinction, and noted with approval that the company had already dropped the rule.

What the two cases show together. Language was the whole job for the translator, and the native speaker rule still failed: it shut out people whose Dutch was good enough, and nobody had checked that it was needed. The driver rule held because it was tied to real tasks and set at "good". Neither opinion turned on whether every applicant was treated the same way. A process can apply a bad criterion with complete consistency.

Are the Institute's opinions binding?

No. They are not legally binding, but they carry real weight.

The Institute says its opinions are not legally binding, so it cannot impose penalties or measures. A complainant who wants those can go to court, and the court must always take the Institute's opinion into account (College voor de Rechten van de Mens). The same page says that when the Institute finds discrimination, measures follow in more than 80% of cases, and that every opinion is published with the name of the employer or agency, without the applicant's name.

In practice, an opinion against you is public, and a judge who departs from it has to explain why.

How do you write a language requirement in a job description, and a physical one?

Describe the task, the level it needs, and how you will check it.

These steps are Radius Hire's recommendations, except where a step cites the law.

The table turns common labels into task statements. The wording is illustrative, not a standard for any role: set the real figures with the people who run the work.

On the last row: nationality is itself a protected ground (AWGB, Article 1), while checking identity and the right to work is a legal duty. Dutch employers must check a new worker's identity against an original, valid identity document, keep a copy in the payroll records, and check the right to work where a permit is needed. Government guidance says to do this before the person starts work (business.gov.nl).

What is indirect discrimination, and which proxies should you watch?

It is a neutral looking rule that hits a protected group harder without justification.

A proxy is a criterion that looks neutral but can track a protected characteristic. The law does not ban proxies as such; it asks whether the criterion is justified for the job (AWGB, Articles 1 and 2). In Radius Hire's view, these are the proxies that turn up most in frontline vacancies:

Each can be lawful when the job needs it and the justification holds. The risk is using them as a shortcut for evidence you could collect directly.

What does this mean for agencies and frontline sites?

Agencies carry the same duties as employers, and a client's wish is no defence.

Both equal treatment acts name placement work by agencies alongside an employer's own hiring (AWGB, Article 5(1)(b); WGB, Article 3(1)), and two of the three opinions here concerned agencies. Both acts also count an instruction to make a distinction as a distinction in itself (AWGB, Article 1(1)(a); WGB, Article 1(1)(a)).

For an agency branch, the practical step is the intake. Agree each client requirement as a task, with the level and the check, and confirm it in writing. If a client asks for "a man for the heavy work" or "native Dutch only", translate it into the task the client needs, and decline the part that describes a group rather than the work.

What are the limits of these opinions?

They show how the Institute reasons, not what your role requires.

Conclusion: test the requirement, then test the person

A requirement holds when it is tied to tasks the job really involves, set at the level those tasks need and checked against the person. It fails when a group label does the work: a sex for strength, a mother tongue for language. Write the demand as a task, use one check for every candidate, and record why each decision was made.

How Radius helps

Radius Hire is the AI hiring platform for frontline roles. It is built to keep each candidate's evidence tied to the requirements you set for the role, while a person makes every decision.

Software does not make a requirement lawful. Writing it as a task and checking it fairly stays your team's job, whether you hire for warehouse or logistics roles.