On 23 April 2020, the European Court of Justice (ECJ) delivered its judgment in Associazione Avvocatura per i diritti LGBTI (C-507/18) The case deals with a complaint from an association that defends the rights of lesbian, gay, bisexual, transgender or intersex (LGBTI) persons after a lawyer stated in an interview given in a radio programme that he would not wish to recruit homosexual persons to his firm nor to use the services of such persons in his firm.
In this judgement the CJUE rules that homophobic statements constitute discrimination in employment and occupation when they are made by a person who has or may be perceived as having a decisive influence on an employer’s recruitment policy.
The case casts light on the notion of “conditions for access to employment and occupation”referred to in article 3(1)(a) of the Anti-Discrimination Directive.
In this judgement the Court interprets widely this notion. It considers that homophobic statements can constitute discrimination in employment and occupation even when no recruitment procedure is opened. The court explains that when a link between the statements made and the recruitment policy can be established such statements fall within the scope of the aforementioned Directive.
To appreciate if such a link exists, national courts should take into account the status of the person making the statements and the capacity in which he or she made them as well as the nature and the context in which the statements are made.
In addition, the Court considers that under the Anti-Discrimination Directive national law may provide that an association has the right to bring legal proceedings in order to claim damages even if no injured party can be identified.
With this decision, The CJUE eases the burden of proof for employees who often struggle to prove discrimination in the workplace. In doing so, it increases the protection against employment discrimination which remain prevalent.