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AG opinion: are homophobic remarks about hypothetically not hiring LGBT people unlawful?

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Are homophobic remarks about hypothetically not hiring LGBT people unlawful?

Yes, according to the Opinion of Advocate General Sharpston 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 Advocate General considered 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 Opinion is not binding on the CJEU, but in most cases the CJEU will follow the Advocate General's Opinion.

Thanks to Karen Jackson of didlaw for preparing this case summary.