The European Court of Justice has ruled that homophobic statements made about recruitment decisions in the context of a radio interview breached anti-discrimination legislation. This decision was reached on the basis that there was deemed to be a direct link between the statements and the conditions for access to employment that was more than theoretical. 

The case concerned comments made by an Italian lawyer during a radio interview who stated that he would not employ or use the services of a homosexual in his law firm. The firm was not recruiting for any positions at the time and no individual complained, however, an association interested in protecting LGBT rights pursued a complaint.

Following multiple appeals the ECJ ruled that that statements suggesting the existence of a homophobic recruitment policy can in principle come within the EU's Equal Treatment Directive and found a discrimination claim as long as the link between the statements and the recruitment policy is not merely theoretical. 

To assess the link, national courts should consider:

  • the status of the person making the statements and to what extent they have a influence upon the employer's recruitment decisions;
  • the nature and content of the statements and the context in which they were made; and
  • whether the statements were made publicly or privately and whether they were broadcast to the wider public.

The court also noted that this interpretation might result in restrictions on freedom of expression, however, freedom of expression is not an absolute unfettered right and is subject to limitations such as safeguarding equal treatment in employment.

This case comes as a timely reminder in an age where social media and online broadcasting is being used by businesses more than ever. Employers should be mindful of the wider impact comments may have, even if they are not targeted at a specific individual or project.