Times: Non-discriminatory recruitment policies

http://www.timesofmalta.com/articles/view/20131114/business-comment/Non-discriminatory-recruitment-policies.494652#.UpDck9KsiSo
Thursday, November 14, 2013, 00:01 by Mariosa Vella Cardona

It is up to employers to prove that there has been no breach of the equal treatment principle enshrined in both EU and national law when they are faced with facts from which discrimination can be presumed, the Court of Justice of the European Union has recently ascertained.

The EU’s directive on equal treatment in employment and occupation lays down a general framework for eradicating any discrimination on the basis of religion or belief, disability, age or sexual orientation. Discrimination on the basis of sexual orientation occurs whenever unwanted conduct related to sexual orientation takes place with the objective or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment. EU law provides that, where the plaintiff comes up with facts from which it may be presumed that there has been discrimination, the burden of proof then shifts on to the defendant who has to prove that, notwithstanding the appearance of discrimination, the principle of equal treatment was not breached.

This particular case concerned homophobic statements made by the patron of a professional football club. 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 this football club and its alleged patron. This NGO claimed that the principle of equal treatment was breached in recruitment matters because of the fact that in an interview concerning the possible transfer of a professional footballer, the patron had stated that he would never hire a homosexual player. The club itself had at no time distanced itself from such statement, the NGO alleged. The CNCD concluded that since the patron’s statement could not be regarded as emanating from an employer or a person responsible for recruitment, the case did not fall within the sphere of employment. Dissatisfied with such a conclusion, Accept filed an appeal before the national Court of Appeal. The latter in turn made a preliminary reference to the Court of Justice of the European Union requesting guidance on the proper interpretation of the EU directive.

The CJEU confirmed that the facts being contested fell within the remit of the EU directive specifically since they revolved around statements concerning a recruitment policy. The Court went on to assert that sport constitutes an economic activity and hence the recruitment of professional footballers was on a par with the recruitment of any other employee for any other post.

The Court then went on to clarify that the fact that the offending statement came from the patron of the club and not from the club itself, did not necessarily exonerate the club from liability. An employer cannot deny the existence of facts from which it may be presumed that it has a discriminatory recruitment policy by maintaining that homophobic statements were made by 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 the employer in recruitment matters, the Court concluded. The fact that the employer did not clearly distance himself from such statements could be taken into account in the appraisal of its recruitment policy.
It is not easy for employers to shrug off responsibility unless they concretely take action to allay any type of discrimination

The Court also asserted that the proof required by the directive to prove non-discrimination need not necessarily be evidence which is impossible to collect without interfering with the right to privacy. Alleged discrimination on grounds of sexual orientation may be refuted by a body of consistent evidence, without the defendant having to prove that persons with a specific sexual orientation have been recruited in the past. It could be enough, for example, for an employer to distance himself from discriminatory public statements and to introduce specific provisions in its recruitment policy aimed at ensuring compliance with the principle of equal treatment.

It is up to employers to ensure that they or any person representing them in any way, do not discriminate on any of the grounds recognised by law when it comes to recruiting personnel. Both direct and indirect discrimination is illegal and as evidenced by the case under examination it is not easy for employers to shrug off responsibility unless they concretely take action to allay any type of discrimination from their recruitment policies.

Mariosa Vella Cardona is a freelance legal consultant specialising in European law, competition law, consumer law and intellectual property law.