Sunday, 26 July 2020

No more fluttering/fleeting line between discrimination in employment and the right to freedom of expression: the CJEU judgment in NH v Associazione Avvocatura per i diritti LGBTI — Rete Lenford






Chiara De Capitani, Ph.D. Researcher in International Studies at the University of Naples "L'Orientale"

Introduction

Case C507/18 NH v Associazione Avvocatura per i diritti LGBTI — Rete Lenford (the present case), can be best summarized through the aviary metaphors used by Advocate General Eleanor Sharpston in her opinion (AG’s Opinion): the ruling balances freedom of expression with the “volatility” of discriminatory statements and analyses which roles members of associations can play in the fight against discrimination, whether they have beaks, wings and feathers or not (see more infra).

This Court of Justice of the European Union (CJEU) case raises many interesting issues and builds on the previous rulings of 2008 – C-54/07 Centrum voor Gelijkheid van Kansen en voor Racismebestrijding v Firma Feryn NV (Feryn) – and 2013 – C-81/12 Asociaţia Accept v Consiliul Naţional pentru Combaterea Discriminării (Asociaţia Accept) rulings.

In all three cases, an employer (Feryn) or a person perceived as being capable of exerting a decisive influence on the recruitment policy of an employer (Asociatia Accept, present case) publicly stated that they would not hire a person from a protected category (ethnic minorities for Feryn, LGBTI* individuals for Asociaţia Accept and present case).

All three cases were brought forward by associations, with no identifiable complainant and, in the case of Asociatia Accept and the present case, the statements were released to the public while the employer had no ongoing or planned recruitment procedures.

Therefore, the Court tries to answer the following questions:

Can discriminatory statements fall under the scope of the directive when no recruitment procedures are ongoing? If so, following which criteria?

How can national Courts assess the balance between the right to freedom of expression and combating discrimination in employment and occupation?

Where no identifiable complainant can be found, can an association bring legal proceedings and ask to obtain pecuniary damages in circumstances that are capable of constituting discrimination?

Facts of the case

During an interview in a radio programme a lawyer (NH) stated that he would never hire a homosexual person to work in his law firm nor wish to use the services of such persons. At the time when he made those remarks, there was no current recruitment procedure open at NH’s law firm.

Having considered that NH had made remarks constituting discrimination on the ground of sexual orientation, the Associazione Avvocatura per i diritti LGBTI — Rete Lenford (the Associazione), brought proceedings against him, asking that he be ordered – among other sanctions – to pay damages to the Associazione for non-material loss.

The action was successful at first instance and upheld on appeal, therefore NH appealed once more in cassation before the Supreme Court of Cassation, Italy (the referring court).

The referring court expresses doubts as to whether the Associazione has standing to bring proceedings against NH and ask for pecuniary damages, since the case has no identifiable complainant. The referring court also asks whether NH’s statements – in light in particular of the absence of an open recruitment position – fall within the scope of Directive 2000/78 (the Anti-Discrimination Employment Directive) on the basis that they concern ‘access to employment’, or whether they should be regarded as mere expressions of opinion.

Analysis

Past, present, and possible future discrimination

NH believes that since there was no current or planned recruitment procedure at his law firm at the time he was interviewed, his statements should not be considered to have been made in a professional context and thus would fall outside of the scope of the Anti-Discrimination Employment Directive.

However, Article 3 (1) (a) of that Directive aims at protecting all persons, as regards both the public and private sectors: “in relation to conditions for access to employment”. Since the Directive is “a specific expression, in the areas that it covers, of the general prohibition of discrimination” laid down in Article 21 of the Charter of Fundamental Rights of the European Union (the Charter) and because of its objectives and the nature of the rights it seeks to safeguard, the Court notes that its scope, defined in Article 3, “cannot be defined restrictively”.

The Court has already found in the rulings Feryn and Asociaţia Accept that discriminatory statements can hinder the “access to employment” of a protected category. Indeed, as stated by Advocate General Maduro and recalled by both the Court and AG Sharpston in the present case: “in any recruitment process, the greatest ‘selection’ takes place between those who apply, and those who do not. Nobody can reasonably be expected to apply for a position if they know in advance that, because of their racial or ethnic origin, they stand no chance of being hired. Therefore, a public statement from an employer that persons of a certain racial or ethnic origin need not apply has an effect that is anything but hypothetical”.

Furthermore, discriminatory statements have a lasting effect in time.

In the Feryn ruling, the Court, interpreting Article 8 of Directive 2000/43 (The Race Equality Directive) - identical to Article 10 of the Anti-Discrimination Employment Directive - established that past statements create “presumption of a discriminatory recruitment policy” which the employer can rebut in Court.

The Court in the present judgment seems to confirm the duration in time, in the past, present but also possibly in the future, as it recognizes – in its answer to the first question – that statements made “outwith any current or planned procedure” can amount to discrimination as long they fulfil a number of non-hypothetical criteria (para 58), which we’ll examine now.

The interpretation of ‘access to employment’

Both the AG and the Court proceed by highlighting a list of criteria National Courts have to follow to establish when discriminatory statements present a sufficient link with ‘access to employment’ to fall under the scope of the Anti-Discrimination Employment Directive.

First, the status of the person making the statements and the capacity in which they made them, which must establish either that they are a potential employer or are, in law or in fact, capable of exerting a decisive influence on the recruitment policy or a recruitment decision of a potential employer, or, at the very least, may be perceived by the public or the social groups concerned as being capable of exerting such influence, even if they do not have the legal capacity to define the recruitment policy of the employer concerned or to bind or represent that employer in recruitment matters.

The latter point is particularly interesting given that both in Asociaţia Accept and in the present case both authors of the discriminatory statements, during their respective interviews, claimed and acted as if they played an important role and a very influential part in the recruitment process of their company (para 35, Asociaţia Accept; para 20, AG opinion), and were perceived as such by the public. However, ironically, their exact status within the company was either unclear (present case, para 43) or was becoming less important than what they were telling and presenting the public (Asociaţia Accept, para 32).

Furthermore, National Courts, following the Asociaţia Accept ruling, should consider as part of their assessment of this criteria whether the actual employer did or did not clearly distance itself from the statements concerned (para 41, present case).

The second criterion to consider is the nature and content of the statements concerned. They must relate to the conditions for access to employment or to occupation with the employer concerned and establish the employer’s intention to discriminate on the basis of one of the criteria laid down by the Anti-Discrimination Employment Directive. This has clearly been the case for all three rulings where three individuals publicly stated they would not hire ethnic minorities (Feryn) or LGBTI individuals (Asociaţia Accept, present case) within “their” company.

It’s interesting to note that in her opinion, the AG adds to these criteria that the statements must also “be of such a nature as to dissuade persons belonging to the protected group from applying if and when a vacancy with that potential employer becomes available” (para 55 of opinion). The Court does not add this element to the list of criteria but will consider it when assessing the interference of the Directive’s application with the right to freedom of speech (see infra).

Finally, the third criteria National Courts have to consider is the context in which the statements at issue were made “—in particular, their public or private character, or the fact that they were broadcast to the public, whether via traditional media or social networks — must be taken into consideration”.

Unfortunately, neither the Court nor the AG elaborate on why they believe this distinction between private and public statements is of such relevance. We can assume, given the AG’s beautiful paragraph at the beginning of her opinion, that public statements “have wings” and “travel fast and spread quickly”, meaning they are “disseminated rapidly and have consequences”. The likelihood that NH’s statements on the radio reached, hurt and affected many members of the LGBTI* community because of their publicity and fluttering in newspapers and social media is without question. However, as the AG herself notes “one can easily imagine the chilling effect of homophobic ‘jokes’ made by a potential employer in the presence of LGBTI applicants” (in a private setting, presumably). Since Feryn, Asociaţia Accept and the present case all concern public statements, hopefully the Court will elaborate on this aspect of “statements” made in a private setting at another time.

The interference with freedom of expression

The AG notes in her opinion that the referring court “expresses doubts as to whether NH’s statements fall within the scope of (the Anti-Discrimination Employment Directive) on the basis that they concern ‘employment’, or whether they should be regarded as mere expressions of opinion, unrelated to any discriminatory recruitment procedure” (para 25). Furthermore, she notes (para 37) that at the hearing the Italian Government emphasised that the statements were not made during a “serious broadcast with the participation of employers and news journalists” but during an “irony-filled programme of political satire”.

Both the AG and the Court proceed thus to examine why the above interpretation of the Anti-Discrimination Employment Directive is not affected by the possible limitation to the exercise of freedom of expression using the parameters provided by Article 52 (1) of the Charter which, as Professor Peers puts it, “deals with the arrangements for the limitation of rights”. Unsurprisingly, he notes: “the greatest volume of [EU] case law concerning the grounds for interference with rights relates to Article 10 ECHR on Freedom of expression”.

Indeed, the present case has sparked controversy also among some academics (Miller, Tanzarella) which believe the AG and the Court have failed to truly assess the proportionality between protection against discrimination and its interference with the right to freedom of expression - I do not believe this to be the case, especially in light on the “necessity requirement” that I will analyse further on.

Let’s flutter back to the ruling:

Professor Peers’ comments on the scope and interpretation of Article 52(1) of the Charter provide useful guidance to assess the judgment of the Court.

Article 52(1) of the Charter contains three different elements:

-          a procedural rule (limitations on rights ‘must be provided for by law’);
-          a rule on the justifications for limiting rights (‘objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others’), and
-          several interlinked rules on the balancing test to be applied as between rights and limitations (the obligation to ‘respect the essence of’ the rights; the ‘principle of proportionality’; and the requirement of necessity).

The Court and AG go through all the above-cited elements in an orderly fashion.

The limitations to the exercise of the freedom of expression that may flow from the Anti-Discrimination Employment Directive are indeed provided for by law, since they result directly from that directive.

They respect the essence of the freedom of expression, since they are applied only for the purpose of attaining the objectives of said Directive, namely to safeguard the principle of equal treatment in employment and occupation and the attainment of a high level of employment and social protection; Further to this argument, the Court notes in paragraphs 37 and 38 of the ruling “recital 11 of the directive states that discrimination based inter alia on sexual orientation may undermine the achievement of the objectives of the FEU Treaty, in particular the attainment of a high level of employment and social protection, raising the standard of living and the quality of life, economic and social cohesion and solidarity, and the free movement of persons. (The) Directive is thus a specific expression, within the field that it covers, of the general prohibition of discrimination laid down in Article 21 of the Charter”;

They respect the principle of proportionality in so far as the prohibited grounds of discrimination and the material and personal scope are defined in the directive, and the interference with the exercise of freedom of expression does not go beyond what is necessary to attain the objectives of the directive, in that only statements that constitute discrimination in employment and occupation are prohibited.

Finally, the Court elaborates with more detail the last requirement, the “necessity test”: the limitations to the exercise of freedom of expression arising from Anti-Discrimination Employment Directive are necessary to guarantee the rights in matters of employment and occupation of persons who belong to a protected group. The AG opinion underlines (in para 70) the following section of Article 10(2) of the European Convention on Human Rights (ECHR) which seems to be perfectly complementary with Art 52(1) of the Charter: “the exercise of (freedom of expression) carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society (…) for the protection of (…) rights of others”.

Analysing the “necessity test” from another perspective, the Court adds that considering statements as falling outside the scope of that directive solely because they were made “outwith a recruitment procedure, in particular in the context of an audiovisual entertainment programme, or because they allegedly constitute the expression of a personal opinion” could make the “very essence of the protection afforded by that directive in matters of employment and occupation (…) become illusory” (para 54 of the judgment).

Finally, the Court aligns itself with the AG opinion that “in any recruitment process, the principal selection takes place between those who apply, and those who do not” and mentions paragraph 57 of her opinion, where she quotes a section of AG Maduro’s opinion in Feryn: “(A) public statement from an employer that persons of a certain racial or ethnic origin need not apply has an effect that is anything but hypothetical. To ignore that as an act of discrimination would be to ignore the social reality that such statements are bound to have a humiliating and demoralising impact on persons of that origin who want to participate in the labour market and, in particular, on those who would have been interested in working for the employer at issue”.

Associations with standing to bring legal proceedings

The Court moves on to the first question: whether the Anti-Discrimination Employment Directive must be interpreted as precluding national legislation under which an association of lawyers whose objective is the judicial protection of persons having in particular a certain sexual orientation and the promotion of the culture and respect for the rights of that category of persons, automatically, on account of that objective and irrespective of whether it is a for-profit association, has standing to bring legal proceedings for the enforcement of obligations under that directive and, where appropriate, to obtain damages, in circumstances that are capable of constituting discrimination, within the meaning of that directive, against that category of persons and it is not possible to identify an injured party.

The Court analyses step by step the various facets of this complex question.

According to Article 9(2) of the Anti-Discrimination Employment Directive, Member States are to ensure that associations, organisations or other legal entities which have a legitimate interest in ensuring that the provisions of the directive are complied with, may engage, either on behalf or in support of a complainant, with his or her approval, in any judicial and/or administrative procedure provided for the enforcement of obligations under the directive.

Since no injured party can be identified in the present case, Article 9(2) of the Directive does not require an association such as that at issue in the main proceedings to be given standing in the Member States to bring judicial proceedings. Nevertheless, Article 8(1) of the Anti-Discrimination Employment Directive provides that Member States may introduce or maintain provisions which are more favourable to the protection of the principle of equal treatment than those laid down in that directive. This is the case for Italy where article 5 of its Legislative Decree n° 216/2003 provides that “trade unions, associations and organisations (…) shall also have standing in cases of collective discrimination where it is not automatically and immediately possible to identify individuals affected by the discrimination”.

Therefore, as was the case with Asociaţia Accept, the Court recalls that Article 9(2) of the Anti-Discrimination Employment Directive in no way precludes a Member State from laying down, in its national law, the right of associations with a legitimate interest in ensuring compliance with that directive to bring legal or administrative proceedings to enforce the obligations resulting therefrom without acting in the name of a specific complainant or in the absence of an identifiable complainant.

In those cases, it is for that Member State to decide under which conditions an association such as that at issue in the main proceedings may bring legal proceedings and for a sanction to be imposed in respect of such discrimination.

With regards to sanctions, the Court, quoting Asociaţia Accept, recalls that sanctions are required, in accordance with Article 17 of the Anti-Discrimination Employment Directive, to be effective, proportionate and dissuasive, regardless of whether there is any identifiable injured party. As noted by Djelassi and Mertens, sanctions can therefore, include the payment of pecuniary damages also in the present case where there is no identifiable complainant and no ongoing recruitment procedure.

Similarly, the Court leaves Member State to determine whether the for-profit or non-profit status of the association is to have a bearing on the assessment of its standing to bring such proceedings. The AG provides further insight on this issue: mentioning the written observations of the Greek Government, she analyses the possible risk that a profit-making association abusing the right to bring proceedings in order to enhance its profits, which, according to the Greek Government, would jeopardise the attainment of the objectives of the directive. First, she notes that given the uncertainty inherent in litigation a “trigger-happy” approach to launching actions would itself be “a risky strategy for a commercially minded association to adopt”. Secondly, it is the duty of the national court to verify if necessary that the Associazione is complying with its stated objectives to protect the interests of the persons in question and with its statutes as regards its status.

Although not repeated by the Court, another aspect of the AG’s opinion in this issue is worth mentioning: apparently NH had argued that the Associazione could not be considered to have a legitimate interest to enforce the rights and obligations deriving from Directive since its members were lawyers and trainee lawyers and supposedly they were not all LGBTI* persons. The AG Opinion finds this argument irrelevant and notes that “one does not require, of a public interest association dedicated to protecting wild birds and their habitats, that all its members should have wings, beaks and feathers”. She underlines that “there are many excellent advocates within the LGBTI community, who can and do speak eloquently in defence of LGBTI rights. That does not mean that others who are not part of that community – including lawyers and trainee lawyers motivated simply by altruism and a sense of justice – cannot join such an association and participate in its work without putting at risk its standing to bring actions”.

Conclusions

The present case fills a series of remaining gaps and completes the trilogy of rulings (Feryn, Asociaţia Accept, present case) on discriminatory statements made in a public setting against hiring employees from protected categories.

There are many more aspects that hopefully the Court will clarify in the future: what about statements made in a private setting? What about categories of individuals that are protected by Article 21 of the Charter but not by the scope of the Directive (discriminations based on social origin, genetic features, language, political or any other opinion, property, birth)? The abbreviation LGBTI is often used in the ruling, yet could the directive be considered to apply to members of that community other than homosexual and bisexual individuals?

Nevertheless, this case will likely have an important impact in the daily lives of LGBTI* individuals, whether they are thinking of applying for a job or currently working with a discriminating employer or persons with/perceived to have an influential role within the company.

Furthermore, as noted by Djelassi and Mertens, the implications of this case cover all groups of persons protected by the anti-discrimination directives.

This case is, in other words, pretty fly for a discrimination guide.

Barnard & Peers: chapter 20
Photo image: Wikicommons media – by Sergio D’Afflitto

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