Waarom het recht geen grip krijgt op institutionele discriminatie op grond van godsdienst: Van individuele casuïstiek naar institutioneel bewustzijn in wetgeving, rechtspraak en beleid

Abstract

Institutional discrimination is a deeply rooted issue in many legal systems, including that of the Netherlands. Although mechanisms such as the shift in the burden of proof offer some protection, both European and national frameworks lack a clear legal definition, and recognition of structural patterns of inequality remains limited. Unsurprisingly, ‘institutional discrimination’ is virtually absent from Dutch case law and other authoritative decisions. However, case law in employment, housing, education, and healthcare reveals recurring stereotypes, common defences, and evidentiary challenges – ­especially in cases involving Muslims. While these do not conclusively prove institutional discrimination, they suggest systemic issues. The individual focus of legal procedures obscures broader mechanisms of exclusion. A stronger legal and policy response is needed, with legislators, courts, and oversight bodies playing a key role in recognizing and addressing institutional religious discrimination.