Once an employee has established facts from which a tribunal can presume discrimination, the burden shifts to the employer to rebut that presumption. The Court of Justice of the European Union (CJEU) held in Asociaţia ACCEPTv Consiliul Naţional pentru Combaterea Discriminării that homophobic comments made by a shareholder (who was not an employee) of a football club could be relied on as facts from which a court could presume discrimination.
In the course of an interview with a journalist in February 2010, Mr Becali, a shareholder in FC Steaua who described himself as the club’s banker and patron, was alleged to have made a number of homophobic comments.
In particular, he was alleged to have said that he would prefer to hire a player from the junior team or even close the club down rather than agree to the transfer of a professional footballer, X, who was thought to be gay. The club’s lawyer then confirmed the club did not hire homosexuals because their presence “would create tensions in the team and among spectators.”
ACCEPT, a non-governmental Romanian organisation which promotes gay rights, lodged a complaint with the Consiliul National pentru Combaterea Discriminarii (National Council for Combatting Discrimination, CNCD), claiming that both Mr Becali and the club had directly discriminated on the ground of sexual orientation.
Decision of lower courts
The CNCD held that, as Mr Becali was not an employee, the club could not be held responsible for his comments.
ACCEPT appealed that decision to the Romanian Court of Appeal which stayed the proceedings and asked the CJEU to decide whether the club could be held responsible for the comments and whether they could be regarded as “facts from which it may be presumed that there has been direct or indirect discrimination”.
The CJEU held that the club could not deny that it had a discriminatory recruitment policy simply by arguing that the person who made the comments was “not legally capable of binding it in recruitment matters”.
The fact that the club had not clearly distanced itself from the statements was a factor which the national court might take into account when hearing the case, as well as the perception of concerned “public or social groups”.
In addition, the fact that the club had not started negotiations with a view to recruiting a player who was thought to be homosexual did not mean that a court could not establish facts from which it could infer that the club was guilty of discriminating against gay players.
It followed that the facts in this case were capable of amounting to facts from which a court could presume that there had been discrimination, even though the comments were made by someone who did not have the authority to represent the club “in recruitment matters”.
In order to rebut the presumption of discrimination, the CJEU held that the club would not have to produce evidence showing that they had recruited gay footballers in the past, as that would interfere with the right to privacy. It could just distance itself from discriminatory public statements and/ or include express provisions in its recruitment policy to ensure it was compliant with the principle of equal treatment.
In this case the Court of Justice of the European Union makes it clear, again, that homophobia is wrong and discrimination against people on the grounds of sexuality in the context of employment will not be tolerated. They make short shrift of the attempt by the football club to use other human rights obligations to try to get out of the claim. Proving anti discriminatory recruitment policies does not necessarily mean proving that one or more of the current or past employees are gay.