The European Court of Justice (“ECJ”) has confirmed that homophobic statements made by a person or persons perceived as having “a decisive influence” over an organisation’s recruitment policy can constitute an act of discrimination and that in certain circumstances associations may bring legal proceedings in order to claim damages even if no injured party can be identified.
Case: NH v Associazione Avvocatura per i diritti LGBTI – Rete Lenford
The facts
The case involved a lawyer who had stated, in an interview given during an Italian radio programme, that he would never hire a homosexual person to work in his law firm.
Following the lawyer’s remarks an association of Italian lawyers tasked with defending the rights of lesbian, gay, bisexual, transgender or intersex (LGBTI) persons commenced court proceedings against the lawyer seeking damages.
An Italian court upheld a discrimination claim brought by an association for LGBTI lawyers. It ordered the lawyer to formulate an action plan to eliminate discrimination, and pay damages of EUR10,000.
The lawyer appealed and the case was subsequently referred to the ECJ by the Italian Supreme Court.
The ECJ
The ECJ was asked to confirm whether the homophobic remarks made by the lawyer on a radio programme during which he specifically stated that he would never employ gay lawyers were capable of amounting to discrimination under the Equal Treatment Framework Directive. It being a relevant factor that there was no active recruitment exercise at the time the remarks were made.
Following on from an earlier opinion given by Advocate General Sharpston, the ECJ had little difficulty in finding that statements “suggesting the existence of a homophobic recruitment policy” do fall within the concept of ‘conditions for access to employment … or to occupation’, in circumstances where the link between the person making the statement and the relevant organisation’s recruitment policy are more than “purely hypothetical”. The ECJ went on to confirm that whilst this will ultimately be a matter for national courts to decide that the status of the person making the statements and the capacity/context in which they are being made will constitute relevant factors that should be taken in to account.
Freedom of expression
The ECJ recognised that its decision might entail a possible limitation to the exercise of freedom of expression. However, it emphasised that freedom of expression is not an absolute right and that its exercise may be subject to limitations. It found that those limitations were engaged in the present case because the anti-discrimination directive had been implemented with the purpose of safeguarding the principle of equal treatment in employment and occupation and the attainment of a high level of employment and social protection.
Damages
The ECJ also found that the Directive permits national legislation to give associations (with a legitimate interest) the right to bring enforcement proceedings in the absence of an identifiable victim.
Our comments
It will be interesting to see whether this decision causes the UK’s own Equality and Human Rights Commission’s to seek to exercise the enforcement powers bestowed upon it by the Equality Act 2006.
Additionally, this case serves as a timely reminder to businesses and organisations that the personal opinions and beliefs of employees (particular senior employees) which are expressed publicly and/or in circumstances where they might reasonably be interpreted as constituting the employer’s own views may in the context of access to employment give rise to the threat of litigation and damages even where there is no active recruitment exercise taking place and/or any discernible victim.
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