Yes, said the Court of Justice of the European Union (CJEU).

This case involved a law firm in Italy, which was not actively recruiting at the time, but whose senior lawyer remarked during a radio interview that he would never hire a homosexual person to work in his law firm nor did he wish to use the services of such persons. As such, there was no job available and no particular person had applied for a role.

An association of lawyers in Italy (the Association) brought a discrimination claim against the lawyer who made the comments. The Association is an organisation which aims to contribute to the development and dissemination of the culture and respect for the rights of LGBTI persons and to create a network of lawyers to offer judicial protection to LGBTI persons and to take representative action on their behalf before national and international jurisdictions.

The CJEU had to consider the following issues:

  1. Whether the comments made by the lawyer constituted discrimination in relation to employment; and
  2. Whether it is possible, in the absence of an identifiable victim, for the Association to seek to enforce the prohibition of discrimination in employment, including through the award of damages?

In relation to the first issue, the CJEU concluded that the remarks made were capable of falling within the Directive as they were likely to hinder access to employment. The statements were likely to deter  LGBTI applicants from seeking employment as lawyers or support staff with that firm and there was therefore more than a hypothetical link between the comments made and access to employment.

When considering whether there is more than a hypothetical link, relevant factors will include the status and capacity of the person who made the statement, the nature, content and context of the statement as well as the extent to which such a statement might discourage LGBTI persons from applying for employment with that employer. Whether the employer clearly distanced itself from the statement and the perception of the protected groups concerned would also be relevant factors.

The CJEU gave the following as an example of a hypothetical link:

…suppose a person were to proclaim, ‘If I were a lawyer, I would never hire an LGBTI person for my law firm’. If the person making the statement is an architect rather than a lawyer and does not work in a law firm in any capacity, the statement, regrettable as it might be, has no actual link with access to employment“.

The CJEU rejected emphatically the proposition that a “humorous” discriminatory statement somehow “does not count” or is acceptable. They commented that:

Humour is a powerful instrument and can all too easily be abused. One can easily imagine the chilling effect of homophobic “jokes” made by a potential employer in the presence of LGBTI applicants“.

In relation to the second issue, the CJEU concluded that it was possible, in the absence of an identifiable victim, for the Association to seek to enforce the prohibition of discrimination in employment, including through the award of damages.

The CJEU considered that it was for national law to lay down the criteria to determine whether any given association has sufficient legitimate interest. If they have a legitimate interest in ensuring that the provisions of the Equal Treatment Directive are complied with, they will have standing to bring proceedings, even in the absence of an identifiable victim. The CJEU commented that the Association in this case, holding the objectives that they held, was “precisely the kind of association that will have a legitimate interest in bringing proceedings…

The Association was therefore entitled to ask the court to sanction the discriminatory conduct in an effective, proportionate and dissuasive manner, including by an award of damages. The award of damages in the sum of 10,000 Euros was upheld.

This is a cautionary tale. Employers should be careful to ensure that employees do not behave in a discriminatory manner, even where there may be no direct link to a particular person’s employment or application for employment. Humour will be no defence and it does not matter that there may be no identifiable victim who suffers hurt feelings, an award of damages may still be made.

If you would like any further information, please contact Hannah Boynes on 0113 280 2058 or hannah.boynes@luptonfawcett.law or another member of the Employment Law team.

Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.

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