Homophobic remarks and the Equal Treatment Directive
Advocate General Sharpston has given her opinion in NH v Associazione Avvocatura per i diritti LGBTI – Rete Lenford that homophobic remarks made by an interviewee on a radio programme about not employing gay lawyers were capable of amounting to discrimination under the Equal Treatment Framework Directive.
A senior lawyer declared on an Italian radio programme that he would never hire a homosexual person to work in his law firm. A discrimination claim was brought by an association for LGBT lawyers, and an Italian court upheld the claim and ordered the lawyer to pay damages of EUR10,000 and to formulate an action plan. The Italian Supreme Court subsequently referred the claim to the ECJ.
The Advocate General found that, even though there was no active recruitment exercise at the time the remarks were made, they were capable of hindering access to employment. It was for the national court to decide whether there was a sufficient link which was more than "purely hypothetical". The Advocate General also considered the issue of whether an association had standing to bring a claim. Articles 8 and 9 of the Directive permit national legislation which gives associations, provided they have a legitimate interest, the right to bring proceedings to enforce the Directive in the absence of an identifiable victim. Where legitimate interest is made out it is open to an association to ask for discriminatory conduct to be sanctioned in an effective, proportionate and dissuasive manner (which can include an award of damages).
Take note: It's worth noting that if Advocate General Sharpston's opinion is followed by the ECJ, it may have implications for the Equality and Human Rights Commission's enforcement powers.