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Homophobic Remarks about Hypothetical Recruitment Process Lead to Unlawful Discrimination

on Friday, 01 May 2020.

Can homophobic remarks made on the radio about a hypothetical recruitment process amount to unlawful discrimination because of sexual orientation?

In the case NH v Associazione Avvocatura per i diritti LGBTI, the Court of Justice of the European Union (CJEU) considered whether homophobic remarks made by a senior Italian lawyer (NH) suggesting that he would not like to work with or recruit homosexual people in his law firm could amount to unlawful discrimination.

Alleged Discrimination

NH made his comments on a radio programme when his law firm had no active or planned recruitment process. Having heard his comments, an association of lawyers who defend the rights of the LGBTI community, successfully brought court proceedings against NH, alleging discrimination because of sexual orientation and claiming damages.

NH appealed the finding to the Italian Supreme Court, which subsequently made a reference to the CJEU.

The CJEU noted that the EU Equal Treatment Directive prohibits discrimination in relation to the conditions for access to employment, including recruitment conditions. The CJEU held that 'conditions for access to employment' covers statements made during audio-visual programmes. This is even when there is no recruitment process open or planned, provided there is a link which is more than just hypothetical between the statements and the employer's recruitment policy.

The CJEU held that it was for the Italian Supreme Court to assess the link between NH's statements and his law firm's recruitment policy but that the following factors would need to be taken into account:

  • the status of the person making the statements
  • the capacity in which the statements were made - in particular it would be necessary to assess whether NH exerted a decisive influence over his law firm's recruitment policy or, at the very least, is perceived by the public as exerting such an influence
  • the nature of the statements

Coronavirus Legal Advice

Best Practice

This case provides a useful reminder of the risks employers face where an employee expresses views that may go against the organisation's ethos and could cause damage to the public perception of an entity. This case concerns an extreme example of an employee making discriminatory remarks on a radio programme. However, the principles could equally apply to employees expressing views on social media.

Employers should ensure that staff are given equal opportunities training and that they have a code of conduct and equal opportunities, dignity at work and recruitment policies in place which emphasise that discriminatory comments, decisions and conduct are not acceptable. Contracts of employment should also include appropriate terms in respect of their upholding the reputation of the employer.


If require specialist legal advice relating to unlawful discrimination, please contact Nick Murrell in our Employment team on 07500 009162, or complete the form below.

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