Are homophobic remarks about hypothetically not hiring LGBT people unlawful?

Summary

Are homophobic remarks about hypothetically not hiring LGBT people unlawful? NH v Associazione Avvocatura per i diritti LGBTI-Rete Lenford.

In this case, the Supreme Court of Italy asked the Court of Justice of the European Union (CJEU) whether an association of LGBT lawyers had standing to bring a claim and whether the scope of the Equal Treatment Directive, which pertains only to employment, extends to hypothetical statements.

Facts

An association of LGBT lawyers in Italy brought a claim against a senior lawyer who had remarked in an interview on an Italian radio programme that he would never hire a homosexual person to work in his law firm. At the time he made the remarks, no active recruitment was happening at his law firm.

An Italian court upheld their claim for discrimination and as compensation, ordered the lawyer to form an action plan to eliminate discrimination and pay 10,000 euros in damages.

The Italian Court of Appeal dismissed the appeal and the Italian Supreme Court referred the case to the CJEU for their opinion on the following questions:

  1. Does the statement made during the radio programme fall within the scope of the Equal Treatment Directive, even if that statement does not relate to any current or planned recruitment procedure?
  2. Does an LGBT Association have automatic standing to bring proceedings, including claims for damages, in circumstances of alleged discrimination on grounds of sexual orientation?
Advocate General Opinion

In relation to the scope of the directive, the Advocate General (AG) opined that the statement is such to amount to direct discrimination and capable of hindering access to employment. The AG listed the following criteria that should be taken into account to establish when discriminatory statements present a sufficient link with access to employment to fall within the scope of the Directive:

  • The status and capacity of the person making the statements. The person has to be an actual potential employer or someone who can influence a potential employer’s recruitment policy.
  • The nature and content of the statements made. They must concern employment within the area of activity of the potential employer and the statements must establish an intention to discriminate against members of the protected group.
  • The context that the statements were made, for example whether in private or public.
  • The extent to which the nature, content and context of the statements may discourage persons from a protected group from applying for employment with that employer.

The AG concluded that the statements, made publically on the radio, were made by a senior lawyer referring to his own law firm and clearly formulated a negative recruitment criterion that would discriminate against potential homosexual applicants. Further, the statements were likely to deter homosexual potential applicants from seeking employment within that law firm. The statements did therefore fall within the scope of the directive, despite to active recruitment exercise at the time.

It was also emphasised that the prohibition of discriminatory statements which hinder access to employment could not be considered to amount to an interference with freedom of expression under the EU Charter of Fundamental Rights.

In relation to the first question, the AG concluded that it is for national law to define the criteria that must be satisfied in order for an association to have a legitimate interest to bring a claim, and therefore have standing. Where a legitimate interest is made out, the association may ask for damages and the Directive further permits national legislation to give associations with a legitimate interest, standing to bring a claim in absence of a direct victim.

Implications for employers

Advocate General opinions do not bind the CJEU but impacts its decision in many cases and if followed by the European Court, this could affect UK discrimination law in the UK. The Equality and Human Rights Commission (EHRC) is a non-departmental public body established by the Equality Act 2006. It is responsible for the promotion and enforcement of equality and non-discrimination laws in the UK and provides advice on the likely effect of a proposed change of law, if followed; the opinion may have implications on their enforcement powers in the UK.

The law and practice referred to in this article has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.

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