In its judgment on Thursday 23 April in Case C-507/18, the Court of Justice of the European Union (CJEU) ruled that homophobic statements constitute discrimination in employment, even if no recruitment procedure is under way, when they are made by a person who has or can be perceived as having a decisive influence on an employer’s recruitment policy.
In the present case, the case concerned an Italian lawyer who had stated on a radio programme that he did not wish to recruit homosexuals into his firm. He was taken to court by an association of LGBTI rights lawyers seeking redress for what they considered discriminatory comments. The case went as far as the Italian Court of Cassation, which asked the CJEU to interpret the concept of “conditions for access to employment, to self-employment or to occupation” within the meaning of the Anti-Discrimination Directive (2000/78).
In its reply, the Court relies on the case law Asociația Accept from 2013 (Case C-81/12), in which it held that homophobic statements by the manager of a football club could place the burden of proof on that club to prove that it does not pursue a discriminatory employment policy.
It replies here that statements suggesting the existence of a homophobic recruitment policy do fall within the notion of “conditions for access to employment … or to occupation”, even if they come from a person who is not legally capable of hiring, provided that there is a non-hypothetical link between these statements and the employer’s recruitment policy.
The existence of that link must be assessed by the national courts in the light of the context, but the Court considers that the status of the author of the statements and the capacity in which he expressed himself must make it possible to establish the influence which he has on the employer’s recruitment policy.
In his defence, the lawyer accused of homophobia asserted his right to freedom of expression. The Court recalls in this regard that “freedom of expression is not an absolute right and its exercise may be subject to limitations”. In the present case, the Court held that these limitations were a direct result of the Anti-Discrimination Directive and were necessary to guarantee the employment and labour rights of the persons covered by that directive.
The Court also ruled that EU law does not preclude national legislation from allowing an association to bring legal proceedings to obtain compensation for damage, even if no injured person is identifiable, as in the present case.
See judgment: https://bit.ly/355oZJp (Original version in French by Marion Fontana)