Making homophobic remarks about not hiring individuals of a certain sexual orientation could be unlawful under the European Union (EU) equal treatment directive because they could discourage protected individuals from applying for jobs, ruled the Court of Justice of the EU (CJEU). The directive establishes a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards an individual’s employment and occupation.
The ruling concerns an Italian lawyer who announced on a radio broadcast that he would never recruit homosexual persons. The lawyer’s firm wasn’t currently hiring, but an association of lawyers that defends the rights of lesbian, gay, bisexual, transgender or intersex (LGBTI) persons sued him for damages. The Italian court ruled that the statement was discriminatory, and the case was referred to the CJEU to determine if a hypothetical statement — in the absence of a direct victim —falls within scope of the EU’s equal treatment directive prohibiting discrimination on the grounds of sexual orientation.
The CJEU ruled that the directive’s provisions on the “conditions for access to employment … or to occupation” cover statements that suggest the existence of a homophobic recruitment policy, even if the employer isn’t actively recruiting. The link between such statements and the conditions for access to employment or an occupation cannot be hypothetical — and national courts must decide on the facts of each case — for example, if the person making the statement has a decisive influence on recruitment decisions.