Chiara De Capitani, Ph.D. Researcher in International Studies at the University of Naples “L’Orientale”

Introduction

The Court of Justice of the European Union (CJEU) case C‑507/18, NH v Associazione Avvocatura per i diritti LGBTI — Rete Lenford, centers around the balance between freedom of expression and the harmful impact of discriminatory language. Advocate General Eleanor Sharpston aptly used bird metaphors in her opinion, likening discriminatory statements to volatile birds that can quickly spread their harmful effects. This case builds upon previous rulings in Feryn (2008) and Asociaţia Accept (2013), where employers publicly expressed discriminatory hiring practices. The CJEU aims to clarify the application of anti-discrimination directives when no active recruitment is underway and when an association, rather than an individual, brings legal action.

This case grapples with three key questions: Can discriminatory statements fall under the directive’s purview even without active recruitment? How should national courts balance freedom of expression with anti-discrimination efforts in employment? Can associations seek legal redress and damages in potential discrimination cases without a specific victim?

Facts of the case

In a radio interview, a lawyer (NH) stated his unwillingness to hire or work with homosexual individuals. At the time, his law firm had no open positions. The Associazione Avvocatura per i diritti LGBTI — Rete Lenford (the Associazione) sued NH for discrimination, seeking damages. Despite initial success, the case reached Italy’s Supreme Court of Cassation (the referring court) on appeal. The court questioned the Associazione’s legal standing and whether NH’s statements, given the absence of an active recruitment process, fell under the Anti-Discrimination Employment Directive’s scope, considering them potentially as mere opinions.

Analysis

Past, present, and possible future discrimination

NH argues that his statements fall outside the directive’s scope because there was no active recruitment at his firm. However, the CJEU emphasizes the directive’s broad aim to protect individuals from discrimination in both public and private sectors “in relation to conditions for access to employment.” The court has consistently recognized, as in Feryn and Asociaţia Accept, that discriminatory pronouncements can deter individuals from seeking employment, creating a chilling effect that transcends hypothetical scenarios. Such statements have a lasting impact. The Feryn ruling established that past discriminatory statements can establish a presumption of discriminatory hiring practices. This case reinforces the enduring nature of such pronouncements, suggesting they can influence past, present, and future access to employment opportunities. The court clarifies that statements made outside of formal recruitment processes can be considered discriminatory if they meet certain criteria, which will be examined further.

The interpretation of ‘access to employment’

The CJEU outlines criteria for national courts to determine when discriminatory statements have a sufficient connection to “access to employment.” First, the speaker’s position and perceived influence on hiring decisions are crucial, regardless of their actual legal authority in the process. The court acknowledges the impact of statements made by individuals perceived as influential, even if their actual role is different. Second, the nature of the statements themselves should relate to employment conditions and express an intention to discriminate based on protected characteristics, as seen in all three cases. Third, the context of the statement, including its public or private nature, is significant, acknowledging the rapid dissemination and broader impact of public declarations. However, the court highlights the potential for harm even in private settings, leaving further clarification for future cases.

The interference with freedom of expression

The court addresses concerns about the potential clash between the directive and freedom of expression, particularly in the context of NH’s statements made during a satirical program. The court, referencing Article 52(1) of the Charter of Fundamental Rights of the European Union, argues that the directive’s limitations on freedom of expression are justified. The limitations are enshrined in law, pursue legitimate aims (safeguarding equal treatment and employment opportunities), and are proportionate to those aims. Additionally, the court stresses the “necessity” of these limitations to protect the employment rights of individuals from marginalized groups, invoking Article 10(2) of the European Convention on Human Rights. It argues that exempting statements made outside formal recruitment processes or under the guise of personal opinions would render the directive’s protections meaningless. The CJEU emphasizes the chilling effect of such statements, regardless of the context in which they are uttered.

Associations with standing to bring legal proceedings

The court tackles the question of whether an organization like the Associazione, without an identifiable victim, can bring legal action and potentially receive damages. While Article 9(2) of the directive doesn’t explicitly require Member States to grant such standing, Article 8(1) allows for more protective measures. Italy’s national legislation grants standing to associations in cases of collective discrimination where identifying individual victims is difficult. Therefore, the CJEU reiterates, as in Asociaţia Accept, that Member States can allow associations to litigate in discrimination cases even without a specific victim, leaving the conditions and sanctions to their discretion. Regarding sanctions, the court emphasizes their effectiveness, proportionality, and dissuasiveness, including the possibility of financial damages, even without a specific injured party. The decision of whether an association’s for-profit or non-profit status influences its standing is left to the Member States. The court dismisses NH’s argument that the Associazione lacks standing because not all its members identify as LGBTI*, highlighting that an organization’s mission can extend beyond the personal characteristics of its members.

Conclusions

This CJEU ruling closes significant gaps in the application of anti-discrimination directives concerning public statements about hiring practices. The court affirms that such statements, even outside formal recruitment processes, can constitute discrimination. Further clarification is needed regarding statements in private settings, the scope of protected characteristics, and the application to specific groups within the LGBTI* community. This ruling will likely have significant implications for individuals from marginalized groups, empowering them and reinforcing their protection against discriminatory behavior in the workplace. The court emphasizes the far-reaching impact of this ruling, extending its protections to all groups covered by anti-discrimination directives.

Barnard & Peers: chapter 20

Photo image: Wikicommons media – by Sergio D’Afflitto