Homophobic remarks and the Equal Treatment Directive
The European Court of Justice (ECJ) has held in NH v Associazione Avvocatura per i diritti LGBTI 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 ECJ 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 factors to consider include the status of the person making the statements and the capacity in which he or she made them. This will then help establish whether that person has, or may be perceived as having, a decisive influence on the employer's recruitment policy.
The ECJ also considered the issue of whether an association had standing to bring a claim in circumstances where it was not possible to identify an injured party. 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). The ECJ stated that the Directive did not preclude the Italian legislation under which the lawyers' association had standing to bring proceedings in these circumstances. It was an option open to Member States to introduce or maintain provisions which are more favourable to the protection of the principles of equal treatment than those which the Directive contains.
Take note: The ECJ has made it clear that a person making homophobic statements may be acting in a discriminatory manner if they are a person who has, or may be perceived as having, a decisive influence on an employer's recruitment policy. In this situation it would be open to the EHRC (which does not have to identify an actual individual who is affected by discrimination) to take action via its enforcement powers.