The European Court of Justice has decided that remarks made by a senior Italian lawyer on the radio that he would not hire a gay lawyer, even though his firm was not recruiting, could still amount to unlawful discrimination under the Equal Treatment Framework Directive.
In the case of NH v Associazione Avvocatura per i diritti LGBTI, a senior Italian lawyer made a series of comments during an interview on an Italian radio programme that he would not recruit a homosexual person to his firm, nor use the services of ‘such people’ within his firm. At the time his firm was not actively recruiting.
A claim for unlawful discrimination was brought against the lawyer by an association for LGBT lawyers. It was successful at first instance with damages awarded of €10,000, was upheld on an appeal by the lawyer and was then referred by the Italian Supreme Court to the ECJ.
The ECJ considered two issues:
- whether the hypothetical comments could still fall within the scope of the Equal Treatment Framework Directive in relation to ‘conditions for access to employment … or to occupation, including selection criteria and recruitment conditions’
- whether the comments were merely a permitted exercise of the right of freedom of expression
Although the lawyer’s comments were hypothetical because his firm was not recruiting at the time, the ECJ ruled that they nonetheless could fall within the scope of the Directive. The ECJ held that it is for the national courts to determine the link between any potentially discriminatory comments made and access to employment which could be considered more than "purely hypothetical". In doing so, these factors should be taken into account:
- the status of the individual who makes the statements
- the capacity in which they make them, for example does the individual have any actual or perceived influence over recruitment?
- the nature and content of the statements
- the context in which the statements are made
Addressing the second issue, the ECJ queried whether a finding of discrimination could limit an individual’s freedom of expression under Article 11 of the EU Charter of Fundamental Rights. The ECJ recognised that any such limitations imposed would need to be necessary to guarantee the equal treatment rights under the Directive. The ECJ held that its judgment did not go beyond ‘what was necessary’ in doing so.
Key points to note
There were two points of note in this case. First, the remarks were purely hypothetical and did not relate to an actual recruitment process. Second, because there was no actual recruitment process there was no actual identifiable “victim”.
It should be obvious that remarks like these should not be made and that doing so can attract liability, not just for the individual but their employer as well, not to mention the damage to public relations and reputation. It is a reminder that employers must regularly train their staff, especially managers and leaders, on diversity issues and ensure they understand the impact their words can have when made in public as in this case, or indeed on any social media or in any other forum.