CJEU rules on homophobic statements made by employers

On 23rd April  2020, the Court of Justice of the European Union (CJEU) ruled that those who publicly declare that they would never employ persons of a specific sexual orientation violate the provisions of the Anti-Discrimination Directive (2000/78). This ruling regards case C-507/18 concerning an Italian lawyer who stated on a radio show that he would not want homosexuals to work in his office and that he would not employ them. Following his statement, the lawyer was sued by an association offering legal protection to persons belonging to the LGBTI community (i.e. lesbians, gays, bisexual, trans, and intersex people).

The CJEU recognized that with this type of homophobic statements, a violation of the Directive occurs even if no recruitment procedure is underway or planned at the time. The only condition is that the declaration is not purely hypothetical, but has a real effect on the possibility and terms of employment in an enterprise. Whether such a causative relationship takes place is to be decided by local courts.

Regarding the freedom of expression, the CJEU reminded that it is not an absolute right and therefore may be subject to restrictions. In the above case, the restrictions arise “directly from the anti-discrimination directive and are used only to guarantee […] the principle of equal treatment in employment and occupation and the achievement of a high level of employment and social protection.”