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In a Scenario where the Remarks are Hypothetical and there is no Direct Victim, Homophobic Comments are Unlawful Discrimination.

This was the opinion of the Advocate General of the CJEU in NH v Associazone  Avvocatura per i diritti LGBTI-Rete Lenford. The referral to the CJEU followed a discrimination claim made against a senior Italian lawyer by an association for LGBT lawyers in Italy. The lawyer, when speaking on Italian radio, commented that he would not hire a homosexual person to work in his law firm.

The claim was successful at first instance and was upheld on appeal with the association being awarded €10,000 in damages. It was referred to the Supreme Court in Italy who put the following questions to the CJEU regarding the Equal Treatment Framework Directive 2000/78/EC…

“Does the scope of Article 3(1)(a) of the directive, which prohibits discrimination in access to employment, also cover a general statement made on the radio to the effect that the interviewee would not recruit homosexuals to his law firm? And is it possible, in the absence of an identifiable victim, for an association to seek to enforce of the prohibition of discrimination in employment and occupation, including through the award damages?”

Answering the questions in favour of the association for LGBT lawyers, the Advocate General set out the relevant criteria which should be considered when determining matters of this nature:

  1. The status and capacity of the person making the comments;
  2. The nature, content and context of the comments; and
  3. The extent to which the comments might discourage persons in the protected group from applying.

Although there was no active recruitment process being carried out, it was deemed that the comments of the senior Italian lawyer were capable of hindering access to employment. It was clear from the comments alone that any homosexual candidate seeking employment at the lawyer’s firm would be treated “less favourably” due to his prejudice. Notably in considering criteria (ii) above, the Advocate General “reject[ed] emphatically the proposition that a humorous discriminatory statement somehow ‘does not count’ or is acceptable.”

However the matter of determining whether there existed a sufficient link between the comments and discrimination which was more than “purely hypothetical” was one for the national court.  

In the event that the Advocate General’s comments are followed by the European Court of Justice, there may be an impact on the way the UK handles matters of this nature and the powers of the Equality and Human Rights Commission to investigate and take enforcement action where unlawful discrimination has taken place.

This bulletin is for general guidance only and should not be used for any other purpose. It does not constitute, and should not be relied upon as legal advice.

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