On 23 April 2020 the European Court of Justice ruled that a statement made on a radio programme that the speaker would never recruit or use the services a person of a particular sexual orientation fell within the scope of the anti-discrimination directive, even though there was no particular recruitment process in mind or taking place, provided the link between those statements and the conditions for access to employment or was ‘not hypothetical’.
An Italian lawyer stated in a radio interview that he would not recruit or use the services of anyone who was homosexual in his firm. An association defending the rights of LGBTI lawyers brought an action against him for damages. The court found against the lawyer, who appealed, lost the appeal and appealed to the Supreme Court of Cassation. The Supreme Court asked the European Court of Justice for a preliminary ruling on the meaning of ‘conditions for access to employment … and to occupation’, in the anti-discrimination directive.
The European Court of Justice ruling
The Court held that statements suggesting the existence of a homophobic recruitment policy can fall within the definition of ‘conditions for access to employment… and to occupation’ in the anti-discrimination directive as long as the link between the statements and the recruitment policy is not merely theoretical. To assess the link, national courts should consider:
‘the status of the person making the statements and the capacity in which he or she made them, which must establish that that person has or may be perceived as having a decisive influence on the employer’s recruitment policy.’
They must also take into account the nature and content of the statements and the context in which they were made (in particular whether made publicly or privately).
The Court noted that although this interpretation might entail restrictions on freedom of expression, freedom of expression is not an absolute unfettered right and may be subject to limitations. In this case the limitations on freedom of expression resulted from the anti-discrimination directive and were necessary to uphold the principle of equal treatment in employment and occupation.
Case C-507/18 NH v Associazione Avvocatura per i diritti LGBTI – Rete Lenford