The appearance of discrimination on ground
of sexual orientation may be refuted by a body of consistent evidence
The directive on equal treatment in
employment and occupation ( Council
Directive 2000/78/EC of 27 November
2000) lays down a general
framework for combating discrimination on the grounds of religion or belief,
disability, age or sexual orientation as regards employment and occupation.
Pursuant to that directive, where facts from which it may be presumed that
there has been discrimination are established before a court or another
competent authority, the burden of proof shifts to the defendants concerned who
must prove that, notwithstanding the appearance of discrimination, there has
been no breach of the principle of equal treatment.
On 3 March 2010, Accept, a non-governmental
organisation whose aim is to promote and protect lesbian, gay, bisexual and
transsexual rights in Romania, lodged a complaint before the National Council
for Combatting Discrimination (CNCD) against SC Fotbal Club Steaua București SA
(‘FC Steaua’) and Mr Becali, who presents himself as being the ‘patron’ of that
club. Accept claims that the principle of equal treatment was breached in
recruitment matters. In an interview
concerning the possible transfer of a professional footballer, Mr Becali had
stated essentially that he would never hire a homosexual player. As regards the
other defendant before the CNCD, FC Steaua, Accept maintains that the club has
at no time distanced itself from Mr Becali’s statements. The CNCD held, in
particular, that since Mr Becali’s statements could not be regarded as
emanating from an employer or a person responsible for recruitment, those
circumstances did not fall within the sphere of employment. However, the CNCD
took the view that those statements constituted discrimination in the form of
harassment (According to that directive a form of discrimination within the
meaning of paragraph 1, when unwanted conduct related, in particular, to sexual
orientation takes place with the purpose or effect of violating the dignity of
a person and of
creating an intimidating, hostile,
degrading, humiliating or offensive environment.) and gave Mr Becali a warning.
That penalty was the only one then possible under Romanian law, since the CNCD’s
decision had been given more than six months after the date on which the facts
complained of occurred. Accept brought an action against that decision before
the Curtea de Apel București (Court of Appeal, Bucharest, Romania), which
referred questions for a preliminary ruling to the Court of Justice on the
interpretation of the directive.
In today’s judgment, the Court observes
that the directive applies to situations such as those on which the dispute in
the main proceedings before the Curtea de Apel București is based, which
involve statements concerning the conditions for access to employment,
including recruitment conditions. The Court states that the specificities of
the recruitment of professional footballers are irrelevant in that regard
because sport constitutes an economic activity which is covered by EU law.
As regards the position of FC Steaua in the
case in the main proceedings, the Court points out that the mere fact that
statements such as Mr Becali’s do not come directly from a given defendant is not necessarily a bar to establishing,
with respect to that defendant, the existence of ‘facts from which it may be presumed
that there has been … discrimination’ within
the meaning of the directive. Consequently,
a defendant employer cannot deny the existence of facts from which it may be
presumed that it has a discriminatory recruitment policy by asserting that the
statements indicative of a homophobic recruitment policy come from a person who,
while claiming to play an important role in the management of that employer and
appearing to do so, is not legally capable of binding it in recruitment matters.
According to the Court, the fact that that employer might not have clearly distanced
itself from those statements may be taken into account in the appraisal of its recruitment
policy.
Furthermore,
the Court states that the burden of proof, as modified by the directive, does
not require evidence which is impossible to adduce without interfering with
the right to privacy. The appearance of discrimination on grounds of sexual orientation
may be refuted with a body of consistent evidence, without the defendant having
to prove that persons with a specific sexual orientation have been recruited in
the past. That evidence may include, in particular, distancing itself from discriminatory public statements
and the existence of express
provisions in its recruitment
policy aimed at ensuring compliance with the principle of equal treatment.
Finally, the
Court observes that the directive precludes national rules by virtue of which, where
there is a finding of discrimination on grounds of sexual orientation, it is only
possible to give a ‘warning’ after the expiry of six months from the date on which
the facts occurred, if that penalty is not effective, proportionate and dissuasive.
However, it is for the Romanian court to determine if that is the situation in the
present case.
The preliminery ruling can be found HERE
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