The Court of Justice of the European Union has said that homophobic comments made about a law firm’s recruitment policy in the context of a radio interview constituted a violation of EU anti-discrimination law.
The case involved an Italian lawyer who stated in a radio interview that he would not recruit anyone who was homosexual in his firm. Associazione Avvocatura per i diritti LGBTI, an organisation which advocates on behalf of LGBTI lawyers, brought an action against him for damages. The Italian court of first instance found against the lawyer and ordered him to pay damages of €10,000. The appeal court upheld this ruling. When he appealed the case to the Italian Supreme Court of Cassation, the Court sent a reference to the Court of Justice of the EU for an interpretation of the meaning of “conditions for access to employment and occupation” in the EU’s anti-discrimination directive.
The Court said that comments indicating that an employer engages in a homophobic recruitment policy can fall within the definition of “conditions for access to employment and to occupation”, even if there is no recruitment procedure in progress at the time of the comments.
To fall within the scope of the Directive, the link between the statements and the recruitment policy cannot be merely rhetorical. The Court went on to add that, in order to assess the link, national courts should examine, “the status of the person making the statements and the capacity in which he or she made them, which must establish that that person has or may be perceived as having a decisive influence on the employer’s recruitment policy.” They should also consider whether the comments relate to the employer and establish the intention to discriminate in recruitment, and whether the comments were made in a public environment. While the Court noted that this interpretation of the Directive might interfere with freedom of expression, this is not an absolute right and can be subject to limitations.
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