The recent Italian case of NH v Associazione Avvocatura per i diritti LGBTI has grappled with an interesting question; is it unlawful to publicly declare that you would never employ a homosexual member of staff?

The facts

A senior lawyer within an Italian law firm was being interviewed on the radio.  He voiced the opinion that he would not employ a homosexual within his business. He was not actually recruiting any employees at the time. Nevertheless, a group which campaigns for the rights of LGBT lawyers brought claims against the law firm in question, arguing that the lawyer’s comments amounted to unlawful sexual orientation discrimination.

The ECJ’s decision

A few months ago, we reported on the outcome of an initial assessment of the case by one of the legal officers working for the European Court of Justice. Now, we can confirm the ECJ’s formal decision. Given the senior position of the person involved and the nature of the comments made (which could certainly have discouraged gay people from applying for work within the law firm in question), the ECJ concluded that the conduct could constitute an act of unlawful sexual orientation discrimination.  Whilst the ECJ acknowledged that their decision could have the effect of curtailing a person’s right to freedom of expression, the ECJ was keen to point out that this right is not without its limitations.

The ECJ stated that in a case such as this, it was possible for Italian courts to impose a sanction (including a financial penalty) on an employer, even where no specific individual could be said to have missed out on the chance of employment with the firm in question. It’s worth noting that in this case, the Italian court awarded the campaign group who brought the claim sum of €10,000.