You say it best when you say nothing at all

Employers need to be aware that public comments could expose them to claims by potential applicants who could argue discrimination when making a job application.

The Court of Justice (ECJ) has handed down its judgment in case C-507/18 (NH v Associazione Avvocatura per i Dritti LGBTI – Rete Lenford) in relation to the Equal Treatment Framework Directive (2000/78/EC) establishing the equal treatment in employment and occupation, including that employers cannot discriminate against job applicants.

In its judgment, the ECJ raised several interesting issues, including freedom of expression, and builds upon the previous cases of C-54/07 Centrum voor Gelijkheid van Kansen en voor Racismebestrijding v Firma Feryn NV (Feryn) and C-81/12 Asociatia Accept v Consiliul National pentru Combaterea Discrimintrii.

In these three cases, a person perceived as being capable of exerting a decisive influence on the employment process publicly stated that they would not hire a person from a protected category. In all three cases, there was no individual complainant, and all were pursued by an association.

Apart from Feryn, the statements were released while there was no ongoing recruitment within the companies.

Background

In this case, NH, a senior lawyer at an Italian law firm, stated during a publicly broadcast radio interview that he did not wish to recruit or use the services of a homosexual person in his firm. At the time of the interview, the law firm was not actively recruiting.

An Italian association of lawyers that defends the rights of LGBTI persons pursued a case against NH for damages. In the proceedings, they asked, among other orders, that he be ordered to pay damages to the association for non-material loss.

The action was successful in the first instance, and NH was ordered to pay €10,000 in damages, and extracts of the order to be published in a national paper. This order was upheld on appeal. This was appealed further by NH to the Supreme Court of Cassation in Italy, which referred the matter to the Court of Justice.

The Italian Supreme Court had reservations as to whether the association had standing to bring the proceedings against NH and ask for damages, since the case had no identifiable complainant.

Scope of the directive

The court also questioned whether the statements, without specific recruitment occurring, were within the scope of the directive, on the basis that they concerned access to employment, or whether the statements of NH should be regarded as an expression of opinion.

Two questions were referred to the ECJ:

• Must article 9 of Directive 2000/78 be interpreted as meaning that an association composed of lawyers specialised in the judicial protection of LGBTI persons, the statutes of which state that its objective is to promote LGBTI culture and respect for the rights of LGBTI persons, automatically, as a legal person having a collective interest and as a non-profit association, has standing to bring proceedings, including in respect of a claim for damages, in circumstances of alleged discrimination against LGBTI persons?
• On a proper construction of articles 2 and 3 of Directive 2000/78, does a statement expressing a negative opinion with regard to homosexuals, whereby, in an interview given during a radio entertainment programme, the interviewee stated that he would never appoint an LGBTI person to his law firm nor wish to use the services of such persons, fall within the scope of the anti-discrimination rules laid down in that directive, even where no recruitment procedure has been opened, nor is planned, by the interviewee?

NH argued that, as there was no active recruitment ongoing or planned at his law firm at the time of the interview, his statements could not be considered to have been made in a professional context and were therefore outside of the scope of the directive.

Furthermore, NH argued that the association could not be considered to have a legitimate interest to enforce the rights and obligations from the directive, since its members were lawyers and were not all members of the LGBTI community.

In dismissing this argument, Advocate General Sharpston stated: “One does not require, of a public interest association dedicated to protecting wild birds and their habitats, that all its members should have wings, beaks and feathers.”

It was further observed: “There are many excellent advocates within the LGBTI community who can and do speak eloquently in defence of LGBTI rights. That does not mean that others who are not part of that community – including lawyers and trainee lawyers motivated simply by altruism and a sense of justice – cannot join such an association and participate in its work without putting at risk its standing to bring actions.”

First question

Under article 9(2) of the directive, member states are to ensure that associations, organisations, or other legal entities that have a legitimate interest in ensuring compliance with provisions of the directive may engage, either on behalf or in support of a complainant, with his or her approval, in any judicial or administrative procedure provided for the enforcement of obligations under the directive.

In this case, there was no identifiable person. Under article 9(2), an association may take a claim; however, it is necessary to have a complainant. As there was no injured party in the case, it was questionable whether the association had the standing to bring the case.

Under article 8(1), member states are entitled to provide more favourable protection than those set out in the directive. Under Italian law, Decree 216/2003 provides that “trade unions, associations, and organisations representing the rights or interests affected under a mandate given by a public or certified private instrument … shall have standing to bring proceedings … in the name and on behalf of, or in support of, the person subject to the discrimination, against the … person responsible for the discriminatory behaviour or act”.

Therefore, the ECJ, as with Asociatia Accept, allowed the association to bring the claim to ensure compliance with the directive without the need for a complainant or in the absence of an identifiable complainant.

In cases with no identifiable complainant, it is a matter for the member state to determine under which conditions the association may bring legal proceedings.

For the status of the association bringing the claim, the ECJ left it to the member states to determine whether the association is for-profit or non-profit. In the opinion of AG Sharpston in mentioning the written observations of the Greek Government, when there is a for-profit association taking claims such as these, there is a risk that abusive proceedings will be brought, leading to a “trigger-happy approach to launching actions”.

Furthermore, AG Sharpston observed that it is the duty of the national court to verify whether the association is complying with its stated objectives to protect the interests of the persons in question.

In relation to the damages that may be sought in situations where there is no complainant, the ECJ held that sanctions of some form are required under article 17 of the directive. The sanctions are to be effective, proportionate, and dissuasive – whether there is a complainant or not. This could include the payment of pecuniary damages.

Second question

NH argued that, as there was no current or planned recruitment at the law firm at the time of the interview, his statements should not be considered to have been made in a professional context and, therefore, fell outside of the scope of the directive.

Of fundamental importance to the court’s reasoning was article 3(1)(a) of the directive, which protected people in relation to access to employment.

As the directive is a “specific expression, within the field that it covers, of the general prohibition of discrimination” set out in article 21 of the Charter of Fundamental Rights of the European Union and because of the objectives of the directive, the ECJ noted that its scope could not be defined restrictively.

As was stated by AG Sharpston, and previously by AG Maduro in Feryn: “In any recruitment process, the greatest ‘selection’ takes place between those who apply, and those who do not. Nobody can reasonably be expected to apply for a position if they know in advance that, because of their racial or ethnic origin, they stand no chance of being hired.”

In Feryn, the ECJ held that past statements create a presumption of a discriminatory recruitment policy, which the employer can rebut in court.

The AG and the court established a set of criteria for member-state courts to follow in order to establish when discriminatory statements present a sufficient link with access to employment to come within the directive:

• The status of the person making the statements and the capacity in which they are made, which must show the person is a potential employer or is capable of exerting a decisive influence on recruitment policy or decisions, or is so perceived,
• The remarks must relate to the conditions for access to employment with the employer and establish an intention to discriminate contrary to the directive, and
• The nature and content of the statements and the context within which they are made, whether public or private.

Freedom of expression

The Italian Supreme Court expressed reservations in its referral as to whether this matter was protected by article 10 of the charter (freedom of expression). The court also noted that the comments were made during an “irony-filled programme of political satire”.

The ECJ acknowledged the judgment would have limitations on the exercise of free speech, but noted that freedom of speech was not an absolute right and may be subject to limitations that are provided for by law and the principle of proportionality.

It held that the limitations to the freedom of expression were necessary to guarantee the rights in matters of employment and occupation for people protected by the directive, and the judgment did not go beyond what was necessary to achieve the aims of the directive.

Protected categories

This judgment completes a trilogy of cases on discriminatory statements made in public about people in protected categories. Although the judgment is clear, it does leave open questions concerning the categories of individuals that are protected by article 21 of the charter, but not by the directive, such as discrimination based on genetic features, language, birth or political opinion.

From a practical perspective, employers and those who are seen to influence employment policies need to be wary that comments in public could expose them to claims by potential applicants who could argue discrimination when making a job application.

Employers may consider it necessary to change their internal policies, thus ensuring that employees do not make statements that are, or could be seen as, discriminatory in nature.