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Dolores Utrilla
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23rd April 2020
Employment & Immigration Human Rights Justice & Litigation

Court of Justice extends the scope of anti-discrimination in employment and allows enforcement even in the absence of an identifiable victim

The Grand Chamber of the Court of Justice has just given its judgment in Associazione Avvocatura per i diritti LGBTI (C-507/18), a case on the interpretation of the Equal Treatment at Work Directive 2000/78, and on whether the scope of prohibition of discrimination in access to employment covers (and prohibits) a general statement made on a radio station about not recruiting homosexuals.

The case stems from the request for a preliminary ruling by the Italian Court of Cassation (Corte suprema di cassazione), which in essence posed to the Court of Justice the following questions: (i) Does the scope of Article 3(1)(a) of Directive 2000/78, which prohibits discrimination in access to employment, also cover a general statement made on the radio to the effect that the interviewee would not recruit homosexuals to his law firm? (ii) Is it possible, in the absence of an identifiable victim, for an association to seek to enforce the prohibition of discrimination in employment and occupation, including through the award of damages?

In its judgment today, the Grand Chamber has ruled, firstly, that homophobic statements made during an audiovisual programme 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. More specifically, the Court of Justice considered that these kinds of statements fall within the concept of ‘conditions for access to employment …or to occupation’ under the meaning of Article 3(1)(a) of Directive 2000/78. The judgment clarifies that this is so even if a recruitment procedure had not been opened, or was not planned, at the time when the statements were made, provided, however, that the link between those statements and the conditions for access to employment or to occupation within the undertaking is not hypothetical. Whether such a link exists must be assessed by the national courts on the basis of all the circumstances surrounding those statements.

The Court of Justice has ruled, secondly, that in such a case 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. The Court made clear that Directive 2000/78 does not require that associations are given standing where no injured party can be identified, but that it gives the Member States the option of introducing or maintaining provisions which are more favourable to the protection of the principle of equal treatment than those contained in the Directive itself.

The judgment is available here (in French).

An Op-Ed on this case by Jeffrey Miller will be published soon on EU Law Live. We will keep you posted!

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