Could homophobic statements made during a radio interview fall foul of the Equal Treatment Framework Directive?
The answer is yes it could.
The European Court of Justice (ECJ) has handed down its judgment in the case of NH v Associazione Avvocatura per i diritti LGBTI (Case C-507/18).
The Equal Treatment Framework Directive (Directive) established the general framework for equal treatment in employment and occupation, including that employers cannot discriminate against job applicants. In the UK, the Directive is implemented through the Equality Act 2010.
In this case, NH, a senior lawyer at an Italian law firm, stated during a radio interview that he did not wish to recruit or use the services of homosexual persons in his firm. At the time, the law firm was not actively recruiting anyone.
An Italian association of lawyers that defended the rights of LGBTI persons brought court proceedings against NH for damages. The case was referred to the ECJ who had to decide:
- Can a statement expressing a negative opinion regarding homosexuals during a radio interview, fall within the scope of the Directive, even when there is no active open (or even planned) recruitment process?
- Can an association tasked with protecting the rights of LGBTI persons bring proceedings (even where there is no apparent injured party)?
In looking at the first question...
The ECJ played particular focus on whether the circumstances in which the statements made by NH fall within the scope of Directive which prevents discrimination in respect to ‘conditions for access to employment … or to occupation, including selection criteria and recruitment conditions’.
Taking into account the context of that particular provision and the objectives of the Directive, the ECJ held that statements made by a person during an audiovisual programme whereby they say they would never recruit or use the services of persons of a particular sexual orientation, could fall within the provisions of the Directive above, even if there was no active open (or even planned) recruitment process happening at that time.
"It was noted by the ECJ that discriminatory opinions by a person who is perceived as being capable of exerting a decisive influence on an employer’s recruitment policy is likely to deter the individuals targeted from applying for a post."
However, the ECJ held that the link between the statements made and the conditions for access to employment or to occupation must not be hypothetical (i.e. there must be a real link which exists in each case). In determining whether a link exists, national courts need to assess:
- the statement in question and the nature and content of it;
- the status of the person making the statement;
- in what capacity that person made the statement;
- whether the person making the statement is capable or even just perceived to have a decisive influence on the recruitment policy/decision of that particular employer; and
- the context in which the statement was made, in particular their public or private character.
The ECJ acknowledged that this would have limitations on the exercise from freedom of expression but noted that freedom of expression is not an absolute right and may be subject to limitations which are provided for by law and respect the principle of proportionality. It found that the limitations to freedom of expression were necessary to guarantee the rights in matters of employment and occupation for the people covered by the Directive and its judgment did not go beyond what was necessary to achieve that.
In respect of the second question...
The ECJ held that although the ability for a lawyers association to have standing to bring proceedings in circumstances where there was no specific injured party was not expressly mandated by the Directive, the Directive does not prevent member states from introducing more favourable provisions in national law to allow for this. If the member state does allow for this, then they can decide the conditions in which such an association can bring legal proceedings for a finding of discrimination and the sanction that can be imposed.
So, what does this mean?
This case is interesting when looking at the interplay between freedom of expression and the protection of minority rights under discrimination legislation.
Whilst this case was dealing with the provisions under Italian law, in the UK, the Equality and Human Rights Commission (EHRC) have a number of enforcement powers to try and get organisations to comply with its provisions. It's possible that this decision could bring an increase in enforcement powers for the EHRC.
From a practical perspective, employers also need to be wary that discriminatory comments, particularly in public, could potentially expose them to claims by potential job applications who could use such statements as evidence to argue that they have been discriminated against in making a job application. Employers may wish to consider amending their policies to make clear that employees should not be making statements which are (or could be seen to be) discriminatory in nature.
If you would like more information on this update or assistance with any related matters, please contact Priya Magar.
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