Are homophobic remarks about hypothetically not hiring LGBT people unlawful?

es, held the European Court of Justice (the CJEU) in NH v Associazione Avvocatura per i diritti LGBTI.

A senior lawyer remarked on Italian radio that he would never recruit a homosexual to his law firm. No active recruitment was ongoing. An association for LGBT lawyers in Italy brought proceedings alleging discrimination and seeking remedies including a press retraction, action to eliminate discrimination and damages.

The claim won at first instance, was upheld on appeal and an award of 10,000 Euros in damages was made. The comments were discriminatory. The case went up. The Supreme Court made a reference to the CJEU. In the absence of a direct victim did an association have standing and could a hypothetical statement fall within the Equal Treatment Directive which pertains only to employment?

The CJEU held that since such statements might discourage people in a protected group from applying for jobs in law it did fall within the scope of the Directive. It is for national law to determine if an association has a legitimate interest. If they do, discriminatory conduct should be sanctioned in an effective, proportionate and dissuasive manner including damages.

This blogpost by Karen Jackson first appeared on Daniel Barnett’s Employment Law Bulletin on 1.11.19.