The Court of Justice of the European Union (CJEU) has held in NH v Associazione Avvocatura per I diritti LGBTI that remarks made by the owner of a law firm during a radio interview when he said he would not employ gay people could come within the provisions of the Equal Treatment Directive. However, it was for the courts to ensure a link between the statements made and the employer’s recruitment process.
During a radio interview, the owner of an Italian law firm said that he would not want to recruit anyone who was gay. Likewise, he would not want to use the services of a gay person. At the time of the interview, the firm was not actively recruiting staff, nor did anyone complain about his comments.
However, an association of Italian lawyers which defends the rights of lesbian, gay, bisexual, transgender or intersex persons (LGBTI) brought proceedings against him arguing that his remarks constituted discrimination on the ground of sexual orientation.
Article 3(1)(a) of the Equal Treatment Directive states that the directive applies to both the public and private sectors in relation to “conditions for access to employment, to self-employment or to occupation, including selection criteria and recruitment conditions.”
Decisions of lower courts
The district court upheld the association’s claim and ordered the firm to pay €10,000 in damages. In addition, it ordered extracts from the judgment to be published in a national daily newspaper.
Following the decision of the Court of Appeal to uphold that decision, the firm appealed to the Supreme Court on the grounds that the owner had expressed a personal opinion in a situation where he was not presenting himself as an employer but as a private citizen.
The Supreme Court asked for a preliminary ruling from the CJEU on the interpretation of the concept of ‘conditions for access to employment…and to occupation’, within the meaning of article 3(1)(a) of the directive.
Decision of CJEU
After deciding that the statements made by the owner of the law firm fell within the scope of the directive, the Court set out the following criteria which, it said, have to be taken into consideration:
- The status of the person making the statements and the capacity in which they made them.
- The nature and content of the statements and whether they a) relate to the conditions for access to employment or to occupation with the employer concerned and b) whether they establish the employer’s intention to discriminate on the basis of one of the criteria laid down in the directive.
- The context in which they were made. In particular, whether they were made in public or private.
Although freedom of expression is a fundamental right, the Court noted that it is subject to limitations under the law, particularly with regard to the need to protect the rights and freedoms of others and to safeguard equal treatment in employment. If the limitations were deemed not to apply in the context of a radio interview, or because they were the personal opinion of the person making them, they would be rendered illusory. As such, these statements fell within the scope of article 3, even though no recruitment programme was planned by the firm.
However, the CJEU then went on to hold that it was for the Italian Supreme Court to decide, on the basis of the criteria above, whether there was a link between the statements made by the individual in question and the firm’s recruitment process.
This case highlights the importance of employers being wary about making general comments about the interview process and opinions that could be linked to their formal recruitment procedure. Employers should ensure that their staff have equality and diversity training to avoid such mistakes from happening.