The European Court of Justice had to consider an interesting scenario this month in the case of NH v Associazione Avvocatura per i diritti LGBTI.
A senior lawyer made comments on an Italian radio station that he would never recruit a homosexual to his law firm. However, there was no active recruitment ongoing at the time, or any future recruitment planned.
An association for LGBT lawyers in Italy brought proceedings against the lawyer concerned, alleging that such comments amounted to discrimination on the grounds of an individual’s sexual orientation. They sought a number of remedies including a press retraction, action to eliminate discrimination and damages.
The association for LGBT lawyers initially won their claim, on the basis that the comments were discriminatory. An award was made for 10,000 Euros in damages.
This decision was upheld on appeal. There was a further appeal to the Italian Supreme Court, who decided that further clarification was required from the European Court of Justice.
Where there was no direct ‘victim’ of the discriminatory comments, could an association bring such a claim, and could a hypothetical statement fall within the European Union’s Equal Treatment Directive which relates only to employment?
NH stated that he was simply expressing his personal opinion as a citizen and that he did not make the comments on the context of any recruitment process.
However, the European Court of Justice decided that there needed to be some link between the status and capacity of the person making the statements, and the nature and content of the statements themselves.
A hypothetical link was not enough. The Court suggested that if someone were to say that if they were a lawyer they would not employ an LGBTI person in their law firm, but in fact, they were an architect and did not work in a law firm, whilst the comments would be regrettable, they had no actual link with access to employment.
Thereafter, there needs to be an assessment of the context in which the statements were made, and the extent to which the statements might discourage people belonging to a protected group from applying for a job with that employer.
In this instance, NH was a senior lawyer and his comments referred to his own law firm.
The comments clearly suggested a negative recruitment criterion which would discriminate against potential applicants who were homosexual. The comments were widely publicized and were likely to deter applications from those who fell within the protected group.
Therefore, the comments were capable of falling within the scope of European legislation relating to employment. It is then for individual countries to determine if an association of the kind, in this case, has a legitimate interest in the issue such that it has ‘standing’ to bring such a claim. If they do, the sanction for the discriminatory conduct should be effective and proportionate, and dissuasive in manner; this might include damages where appropriate.
As the European Court noted in their judgment, ‘words have wings.’ This case is a reminder to employers and employees of the importance that can be attached to comments which might be said in a flippant or hypothetical way.
If such comments are suggestive of a discriminatory approach, the fact that they might not directly relate to a particular person or situation does not mean that legal liability cannot attach them. Employers should be cautious about making statements relating to recruitment which might be perceived to be discriminatory to any of the protected groups of people under the Equality Act 2010.
Safia Tharoo
Barrister, 40 Bedford Row, London
