Italy: dismissal of a person who made remarks to colleague about her sexual orientation

The employee (Employee) was dismissed for having made improper and offensive remarks to a female colleague while in the presence of other people.

The female colleague filed a formal complaint to the company against the Employee. It was reported that the Employee learnt that she had given birth to twins and began to mock her by saying “but why did you get pregnant too?” – “but weren’t you a lesbian?” and then, in a derisory manner, “and how did you get pregnant?” and other phrases; the episode occurred while in the presence of other people at a bus stop, where the female colleague was waiting to start her shift as a driver. Both employees were in uniform and recognisable as workers of the company.

The Court of Appeal of Bologna deemed that the conduct of the Employee was “substantially not appropriate” and contrary to good manners and the formal aspects of civil life. However, the Court found that the company had no cause for termination and deemed the dismissal unfair. The employer was condemned to pay to the Employee an indemnity of 20 monthly salary.

The Supreme Court did not agree with the assessment of the Court of Appeal of Bologna. The ruling no. 7029 of March 9, 2023 of the Supreme Court stated that the evaluation made by the lower Court’s judges did not comply with the current values in the social reality and the principles of the legal system. It affirmed that the content of the expressions used and the factual circumstances in which the Employee’s behaviour were placed, were in contrast with the values that are now rooted in the general conscience and principles of the legal system. According to the Supreme Court, the evolution of society in recent decades led to an acquisition of awareness of the respect that any choice of sexual orientation deserves. Intrusion into private sphere of the person carried out in a manner of mockery and without regard to the presence of third persons cannot be considered a ‘little’ violation of formal rules of good manners but must be assessed considering the centrality of inviolable rights protected under the Italian Constitution. The Court remarked that this general system of protection found precise indication in the legal system through the provision of anti-discrimination regulations in various ways aimed at preventing or repressing forms of discrimination related to sex, also in the contest of employment relationship. Among these, the Italian Code of equal opportunities between men and women establishes under Section 26 that discrimination comprehends also harassment defined as unwanted conducts put in place for reasons related to sex, with the purpose or effect of violating the dignity of a female or male worker and of creating an intimidating, hostile, degrading, humiliating or offensive environment. The Court found that this provision is specifically relevant in this case, considering that the legislator provided a specific protection to those who find themselves subjected to undesirable conduct in the employment relationship for reasons connected to sex. The case was returned to the Court of Appeal of Bologna that was ordered to review its decision applying the principles stated by the Supreme Court.

Key Action Points for Human Resources and In-house Counsel

Practical Points

• Aside from any considerations on the conclusions of the Supreme Court, this decision represents a clear admonishment that sexist behavior should not be tolerated any longer in modern workplaces.
• Employers should become more attentive and aware of its liabilities to ensure a workplace that safeguards the dignity and integrity of its employees, protecting them from unwanted behaviors with sexual connotation that invade the personal sphere of the employees.
• Particular attention should be paid also in terms of application of effective and incisive company polices and training to ensure employee compliance.