247: Homophobic remarks made by an Italian lawyer during a radio interview contravened the Equal Treatment Directive

The European Court of Justice has recently ruled that remarks made by an Italian lawyer on a radio programme that he would not hire a homosexual person to work in his law firm could amount to unlawful discrimination contrary to the Equal Treatment Directive (NH v Associazione Avvocatura per i diritti LGBTI).

NH, a senior lawyer, stated during an interview on an Italian radio programme that he would never recruit a homosexual person to work in his law firm or use their services in his firm. His firm was not actively recruiting at the time. An Italian association for LGBT lawyers brought a claim for discrimination, seeking damages of 10,000 Euros from NH, a press retraction of his statement and an action plan to eliminate discrimination. NH argued that his comments were his personal opinions and had not been made in an employment context. The Supreme Court in Italy referred the case to the ECJ for a ruling on whether a hypothetical statement, with no direct victim, could fall within the Equal Treatment Directive.

In line with the earlier opinion of the Advocate-General, the ECJ ruled that NH’s remarks could fall within the scope of the Directive. A public statement which suggested the existence of a homophobic recruitment policy fell within the prohibition on hindering conditions for access to employment, even if there was no active recruitment exercise at the time. However, the link between the statement and access to employment must not be purely hypothetical. This link would need to be assessed by a national court, taking into account all relevant circumstances including the status of the person making the comments; whether they have any influence on the employer’s recruitment policy; the nature, content and context of the comments; and the extent to which the comments might discourage people belonging to the protected groups from applying for employment.

This case confirms that the term ‘access to employment’ in the Equal Treatment Directive will be broadly interpreted, and that someone who makes homophobic statements on recruitment policies or practices in public may be acting in a discriminatory manner if they have sufficient influence on those policies. The ECJ also confirmed that national legislation can allow associations with a legitimate interest to bring proceedings to enforce the Directive where there is no identifiable victim. In the UK, the Equality and Human Rights Commission already has the power to take similar enforcement action where it cannot identify an individual who has been affected by discrimination.