Homophobic statements made by a person who has or may have a decisive influence on an employer’s recruitment policy may amount to discrimination, the Court of Justice of the European Union (CJEU) has recently affirmed. This is the case even if in actual fact there is no injured party, and it is permissible for member states to allow for the filing of judicial action for damages even in such cases.
EU law makes it illegal for employers or potential employers to discriminate, whether directly or indirectly, on grounds of religion or belief, disability, age or sexual orientation. This obligation of non-discrimination applies in relation to conditions of access to employment, including selection criteria and recruitment conditions and promotion, vocational training, employment and working conditions, including dismissals and pay as well as membership of any relevant organisation.
Member states are obliged to ensure that judicial and/or administrative procedures are available to all those who feel aggrieved by any such discriminatory treatment in their regard.
The facts of this case were briefly as follows:
In an interview during a radio programme, a lawyer declared he would not recruit or use the services of homosexual people in his firm. The lawyer in question could not recruit staff directly himself, and as such there was no injured party who had suffered discriminatory treatment.
Nonetheless, a lawyers’ LGBTI association filed an action for damages against the said lawyer, claiming such comments amounted to discrimination on grounds of sexual orientation in so far as employment is concerned. Hence, they amounted to a breach of the EU’s anti-discrimination directive in employment matters as transposed by the relevant national law.
The national appellate court seized of the case sought a preliminary ruling from the CJEU, requesting guidance on the interpretation of the concept of non-discrimination in relation to “conditions for access to employment” in terms of the directive.
The CJEU affirmed that statements suggesting the existence of a homophobic recruitment policy do fall within the concept of “conditions for access to employment”. This is so even if the person making such statements cannot recruit staff directly himself and no recruitment procedure had been opened, nor was planned, at the time when such statements were made.
A crucial factor in establishing whether there was discriminatory treatment in relation to conditions for access to employment is the link which must subsist between such statements and the actual employer’s recruitment policy. Such a link cannot be hypothetical, the Court observed.
In determining this, national courts must take into consideration various criteria, including, the status of the person making the statements and the capacity in which they made them. This is so in order to establish whether the person in question has or could be perceived as having a decisive influence on the actual employer’s recruitment policy.
Other factors to be taken into consideration is the nature and content of the statements concerned and the context in which they were made, that is, whether privately or publicly.
The Court discarded the claim that such a wide interpretation of EU law could amount to a limitation to the exercise of freedom of expression. It observed that freedom of expression is not an absolute right, and its exercise may be subject to limitations, provided for by law in accordance with the principle of proportionality.
Within the context of the law and facts under examination, the CJEU concluded that the limitation to such a right was in this case necessary and also met the objective of the need to protect the rights and freedoms of others. The Court affirmed that the protection afforded to employees or potential employees by EU law would not be effective should discriminatory statements such as the ones being considered be deemed to fall outside the scope of the directive simply because they were made within the context of an audiovisual programme or constitute the expression of a personal opinion of the person who made them.
The Court also affirmed that it is within the remit of each member state and in line with the relevant EU directive, to provide legal standing to an association even in cases where it is not possible to identify an injured party. This is due to the discretion afforded to member states by this directive to introduce more favourable measures at national level than the ones envisaged in the directive itself.
This judgment is indeed a very wide interpretation of what could amount to discriminatory action in relation to employment. It surely serves as a stern warning to any employer who seeks to circumvent the law by adopting and implementing a recruitment policy that is in any way in breach of the principle of equal treatment in so far as the grounds of religion, disability, age or sexual orientation are concerned.
Mariosa Vella Cardona, M’Jur, LL.D., freelance legal consultant