EU: CJEU interprets Exclusion of Homosexual Candidate-Employees by Potential Employer as Discrimination

In a judgement of 23 April 2020 (C-507/17, NH / Associazione Avvocatura per i diritti LGBTI – Rete Lenford), the Grand Chamber of the CJEU confirmed the interpretation that an Italian lawyer, who publicly claims to never employ homosexual persons in his firm, can be condemned because of discrimination on the ground of sexual orientation, after a complaint of an Association which stands up for the rights of LGBTI lawyers in Italy.

In an interview given during a radio programme in 2014, Italian lawyer NH claimed that he would not recruit homosexual persons to his law firm, nor would he use the services of such persons. On that basis, the District Court of Bergamo ordered NH to pay 10.000 euro to the Associazione Avvocatura per I diritti LGBTI (‘the Associazone’) in damages. Next, the Appellate Court of Brescia turned down NH’s appeal, which caused him to submit an appeal in cassation before the Italian Supreme Court. Before the Supreme Court, NH based his case on the argument that he had only expressed an opinion on the profession of lawyers, in his capacity as an ordinary citizen, and not as an employer. According to NH, the disputed statements were made outside any concrete professional context and no recruitment procedure was in progress, nor was one planned for at that time. As a result, the Associazione, as a counterparty, was not competent to submit a claim before the courts.

The Italian Supreme Court posed two prejudicial questions to the CJEU:

1. Does Directive 2000/78 preclude national legislation under which, an association of lawyers whose objective (according to its statutes) involves:
   1. the judicial protection of persons having, in particular, a certain sexual orientation; and
   2. the promotion of the culture and respect for the rights of that category of persons,
      – afford such association, automatically on account of that objective and irrespective of whether it is a for-profit association –
      with standing to bring legal proceedings for the enforcement of obligations under that directive and, where appropriate, to obtain damages in circumstances that are capable of constituting discrimination within the meaning of that directive, against that category of persons, and this, even if it is not possible to identify an injured party?
2. Does a statement expressing a negative opinion with regard to homosexuals, whereby, in an interview given during a radio entertainment programme, the interviewee stated that he would never appoint an LGBTI person to his law firm, nor would he use the services of such persons, fall within the scope of the anti-discrimination rules laid down in that directive, even where no recruitment procedure has been opened, nor is planned, by the interviewee?

With regards to the first question, the CJEU refers to its previous case law (judgment of 25 April 2013, Asociația Accept, C‑81/12) and states that Directive 2000/78 in no way precludes a Member State from laying down, in its national law, the right of associations with a legitimate interest in ensuring compliance with that directive to bring legal or administrative proceedings to enforce the obligations resulting therefrom without acting in the name of a specific complainant or in the absence of an identifiable complainant. Therefore, the Associazone had legal standing to start a legal procedure against NH.

What concerns the second question, the CJEU interprets the concept of ‘conditions for access to employment … or to occupation’ in Article 3(1)(a) Directive 2000/78/EC in a broad manner as covering statements made by a person during an audio-visual programme according to which that person would never recruit persons of a certain sexual orientation to his or her undertaking or wish to use the services of such persons, even though no recruitment procedure had been opened, nor was planned for at that time, provided that the link between those statements and the conditions for access to employment or occupation within that undertaking is not hypothetical. Whether such a link exists must be assessed by the national court hearing the case in the context of a comprehensive analysis of the circumstances characterising the statements concerned. As regards the criteria to be taken into consideration to that end, the national courts should look at:

• The status of the person making the statements being considered and the capacity in which he or she made them – which must establish either that he or she is a potential employer or is, in law or in fact, capable of exerting a decisive influence on the recruitment policy or a recruitment decision of a potential employer (or, at the very least, may be perceived by the public as being capable of exerting such influence);
• The nature and content of the statements concerned – they must relate to the conditions for access to employment or to occupation with the employer concerned, and establish the employer’s intention to discriminate on the basis of one of the criteria laid down by Directive 2000/78;
• The context in which the statements at issue were made — in particular, their public or private character, or the fact that they were broadcast to the public, whether via traditional media or social networks — must be taken into consideration.

With this judgment, the CJEU confirms its case law in Asociația Accept, C‑81/12, in which an important shareholder of a Romanian football team was deemed guilty of discrimination, after he publicly declared that he did not accept any homosexual football players on his team.

For more information on these articles or any other issues involving labour and employment matters in European Union, please contact Chris Van Olmen (Partner) of Van Olmen & Wynant at chris.van.olmen@vow.be or visit www.vow.be.