In the European Court of Justice (CJEU) case of NH v. Associazione Avvocatura per i diritti LGBTI (Case C-507/18), a senior lawyer said he would not recruit or work with homosexual people at his firm during an Italian radio interview. His firm was not recruiting at the time and they did not receive complaints from any individuals. However, an association defending the rights of LGBT people in court brought an action against him for damages. This made its way to the Italian Supreme Court who, in turn, made a reference to the CJEU.
The CJEU held that discriminatory statements like this can fall within the material scope of the EU Equal Treatment Directive, thus founding a discrimination claim. For this to happen, there must be a link between statements made and the employer’s recruitment policy. This involves looking at whether the person making the statement is capable, or can be perceived as being capable, of influencing recruitment policy or decisions, assessing whether the remarks are discriminatory in how they relate to accessing employment and examining the context in which the statements were made i.e. whether they were private, public or broadcast. This will be a matter for national courts to establish but, if these limbs can be satisfied, there will be a “non-hypothetical” link between the statement and access to employment, and the remark could lead to a valid discrimination claim.
The CJEU considered that its interpretation of the Directive did result in possible limitations on the freedom of expression, but that right is not absolute right. That right is subject both to the limitations provided by law and the principle of proportionality.
This is an interesting case that may serve as a reminder to employers regarding the importance of regularly reviewing their recruitment policies and practices. Employers also need to ensure that all employees involved in (or perceived to be involved in) recruitment processes are aware of their obligations in this respect.
