Abstract
The visibility and awareness of LGBTQ people in society as well as in the workplace increase steadily. While LGBTQ equality covers a wide range of issues, this paper will focus on workplace discrimination, such as homophobic speech at the workplace, the hindrance to access to work, LGBTQ worker’s rights at the workplace in Europe. In this scope, EU law and the European Convention on Human Rights (ECHR) provide two important sources of protection from discrimination on the grounds of sexual orientation and gender identity. Under the ECHR, the right to work is not protected by the Convention; however, the European Court of Human Rights (ECtHR) had already accepted that in some situations, issues arising from employment relations might fall under the scope of Article 8 of the Convention. Furthermore, the ECtHR was confronted with the question of discrimination against LGBTQ individuals in the workplace. As for the EU Law, most notably, tackling sexual orientation-based discrimination at the workplace has been a duty of EU Member States by the adoption of the Employment Framework Directive (2000/78/EC). In this direction, the Court of Justice of the European Union (CJEU) was already asked to interpret the Directive regarding homophobic speech in two recent cases.
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Notes
- 1.
CoE (2021a, b), p. 19; “25% of LGBTI persons have been the victim of at least one attack in the workplace due to their sexual orientation, gender identity or sex characteristics. Seventy-seven percent of LGBTI persons living with a partner acknowledge that they have voluntarily avoided revealing their sexual orientation, gender identity or sex characteristics in various work situations. Thirty five percent state that they are unhappy about not being visible.”
- 2.
- 3.
Council Directive 2000/78/EC of 27 November 2000 establishes a general framework for equal treatment in employment and occupation. Official Journal L 303, 02/12/2000 P. 0016 – 0022.
- 4.
Mulder (2017), pp. 51–52. At the time when the Court ruled on these cases, the interpretation and references made by the Court were based on the 2000/43/EC Directive. The Court, therefore, has assessed the discrimination of LGBTQ employees’ cases based sex rather than sexual orientation. When the court did so, it has concluded that different treatment between the unmarried lesbian employee in a partnership and unmarried heterosexual employee in a partnership would not constitute sex-based discrimination, since the former should be compared with a gay employee in a partnership in a similar situation. Consequently, neither a gay employee in a partnership nor a lesbian employee in a partnership would be entitled to the travel allowance granted by the company, the Court concluded that there was no discrimination of the comparable groups based on sex. See Case C-249/96, Grant v. South-West Trains Ltd., para. 36. However, it is also worth noting that the Court has further noted that same-sex relationships are not viewed, at that time, as equivalent to the marriages or relationships of people of the opposite sex. See the Equal Misery Argument adopted by the CJEU and its critics. Tryfonidou (2018), p. 232. The author argues that instead of comparing the concerned employee with a fictional gay colleague in a partnership, it would have been appropriate to use a male colleague with a female partner as a comparator. Otherwise, the sex of the claimant as well as the sex of the partner is changed.
- 5.
Mulder (2017), p. 52.
- 6.
In a similar vein see Tryfonidou (2018), p. 238. By these recent judgments, N.H. and Asociaţia Accept, the Court has also acknowledged and achieved substantive equality in sexual orientation-related matters.
- 7.
NH v Associazione Avvocatura per i diritti LGBTI - Rete Lenford and Asociaţia Accept.
- 8.
Recital para.33 and art.2/2 of the Directive.
- 9.
Muir and Waddington (2018), p. 27.
- 10.
ILO (May, 2015), p. 1.
- 11.
ILO (May, 2015), p. 1.
- 12.
European Union Agency for Fundamental Rights (2020), p. 31.
- 13.
European Union Agency for Fundamental Rights (2020), p. 35.
- 14.
European Union Agency for Fundamental Rights (2020), p. 31.
- 15.
O'Connell (2012), p. 180.
- 16.
- 17.
Perkins and R. v. the United Kingdom, App. Nos. 43208/98, 44875/98, Judgment of 22 October 2002; Beck, Copp and Bazeley v. the United Kingdom, App. Nos. 48535/99, 48536/99, 48537/99, Judgment of 22 October 2002; Lustig-Prean and Beckett v. the United Kingdom, App. Nos. App. nos. 31417/96, 32377/96, Judgment of 27 September 1999; Smith and Grady v. the United Kingdom, App. Nos. 33985/96, 33986/96, Judgment of 27 September 1999.
- 18.
Lustig-Prean and Beckett v. the United Kingdom, para. 83.
- 19.
Para.98; Smith and Grady v. the United Kingdom, para. 110.
- 20.
Smith and Grady v. the United Kingdom, para. 111.
- 21.
ILO (2015), p. 1.
- 22.
Handyside v. The United Kingdom, Application No. 5493/72, Judgment of 07 December 1976.
- 23.
Harris et al. (2014), p. 614.
- 24.
Handyside v. The United Kingdom, Application No. 5493/72, Judgment of 07 December1976, para.49.
- 25.
Handyside v. The United Kingdom, Application No. 5493/72, Judgment of 07 December 1976, para.49..; Observer and Guardian v. The United Kingdom, Application No. 13585/88, Judgment of 26 November 1991, para.59; Ligens v. Austria, Application No. 9815/82, Judgment of 08 July 1986, paras.41-42; VgT Verein Gegen Tierfabriken v. Switzerland, Application No.24699/94, Judgment of 28 June 2001, para.73.
- 26.
Garaudy v. France, Application No.65831/01, decision on admissibility, 24 June 2003; Schimanek v. Austria, Application No. 32307/96, decision on admissibility 01 February2000; M’Bala M’Bala v. France, Application No. 25239/13, decision on admissibility 20 October 2015; Norwood v. The United Kingdom, Application No. 23131/03, decision on admissibility 16 November 2004; Pavel Ivanov v. Russia, Application No. 35222/04, decision on admissibility 20 February 2007; Belkacem v. Belgium, Application No. 34367/14, decision on admissibility 20 July 2017.
- 27.
- 28.
Vejdeland and others v. Sweden, Application no. 1813/07, Judgment of 09 February 2012, Lilliendahl v. Iceland, Application No. 29297/18, Judgment of 12 May 2020, Beizaras and Levickas v. Lithuania, App. No. 41288/15, Judgment of 14 January 2020.
- 29.
Lilliendahl v. Iceland, Application No. 29297/18, Judgment of 12.05.2020.
- 30.
Lilliendahl v. Iceland , para. 36.
- 31.
Beizaras and Levickas v. Lithuania, App. No. 41288/15, Judgment of 14 January 2020.
- 32.
Beizaras and Levickas v. Lithuania, paras. 120–124.
- 33.
Case C-81/12, Judgment of the Court (Third Chamber), 25 April 2013.
- 34.
Case C-81/12, para. 35.
- 35.
Case C-81/12, para.29.
- 36.
Article 17 Sanctions: “Member States shall lay down the rules on sanctions applicable to infringements of the national provisions adopted pursuant to this Directive and shall take all measures necessary to ensure that they are applied. The sanctions, which may comprise the payment of compensation to the victim, must be effective, proportionate and dissuasive. Member States shall notify those provisions to the Commission by 2 December 2003 at the latest and shall notify it without delay of any subsequent amendment affecting them.”
- 37.
Case C-81/12, para.70.
- 38.
Case C-81/12., para. 69.
- 39.
Case C-507/18, Judgment of the Court (Grand Chamber) of 23 April 2020.
- 40.
Belavusau (2020), p. 1004. The author notes that discrimination, as well as the speech, must be avoided if they constitute “selection criteria” for the vacation, in the meaning of art.3 para.1 let. a of 2000/78/EC. Also, see the opinion of the Advocate General on NH case para.62. AG seems to require a link between hate speech and recruitment in light of the Directive. It is also equally important that the AG has acknowledged the jurisprudence of ECtHR concerning hate speech. See para.67. In order to support her stance where the interference made to freedom of speech in the context of 2000/78/EC, she considers such interference is necessary and proportionate to achieve the aim of the Directive.
- 41.
For the critics regarding the CJEU’s silence on not to bow the jurisprudence of ECtHR on Vejdeland and Others v. Sweden Case see Belavusau (2020), p. 1016.
- 42.
Case C-507/18 para.51. See AG Opinion on Case C-507/18, para.62 and 66. On contrary, AG argues in her opinion that 2000/78/EC reflects the clear choice of the EU legislator for the sake of combatting discrimination against the enumerated grounds. For this reason, any speech that falls in the ambit of discrimination in terms of the Directive shall not be exonerated by arguing the freedom of speech. The AG is also of the opinion that the limitation to freedom of speech is already enshrined under 2000/78/EC.
- 43.
Case C-507/18 para.s 37, 39, 40, 43–44. The Court gives precedence to the broad interpretation of the term ‘for access to employment or to occupation’. The Court also further notes that in the eye of the public such statements shall be comprehended as if the meaning that being non-LGBTQ is a pre-condition to be recruited at the concerned workplace.
- 44.
Case C-81/12, paras.36–37. Also, see Henrard (2019), p. 99.
- 45.
Case C-507/18, para. 46, 56–57.
- 46.
Lilliendahl v. Iceland, Application No. 29297/18, Judgment of 12 May 2020.
- 47.
Eweida and Others v. The United Kingdom, App. Nos. 48420/10, 36516/10, 51671/10, 59842/10, Judgment of 15 January2013, para. 94.
- 48.
Eweida and Others v. The United Kingdom, App. Nos. 48420/10, 36516/10, 51671/10, 59842/10, Judgment of 15 January 2013, para. 106.
- 49.
Miller (2020), p. 304.
- 50.
Eweida and Others v. The United Kingdom, App. Nos. 48420/10, 36516/10, 51671/10, 59842/10, Judgment of 15 January 2013, para. 109.
- 51.
Denis Viktorovich Oleynik v. Russia, App. No. 4086/18, Communicated on 5 February 2020.
- 52.
WABE eV C-804/18 and MJ Case C-341/19 were rendered on 15 July 2021.
- 53.
The litigant did not cover her head at the beginning of recruitment but shortly after the recruitment.
- 54.
WABE eV Case, para.31 and MJ Case, para.63.
- 55.
Wladasch (2020), p. 235.
- 56.
Muir and de Witte (2017), p. 147. A similar provision concerning the burden of proof is enshrined under 2006/54/EC art. 19. On the other hand, criminal procedures and inquisitorial proceedings are exempted from the scope of the burden of proof under Directive 2000/78/EC, Article 10, para. 3.
- 57.
Muir and de Witte (2017), pp. 139, 147, 148.
- 58.
That the discriminative speech was made by means of public channels is of importance when taking into account whether or not the discrimination is established. On her opinion on “N.H.” Case AG Sharpston has developed four criteria for a speech to be considered as discrimination in the meaning of Directive.
- 59.
See Opinion of Advocate General on Case C-507/18 paras. 44–46.
- 60.
Mr D Robson v NGP Utilites Ltd: 1805097/2019. Employment Tribunal decision rendered by HM Courts & Tribunals Service and Employment Tribunal on 16 June 2021.
- 61.
Henrard (2019), p. 99.
- 62.
Case C-54/07, Judgment of the Court (Second Chamber) of 10 July 2008. Feryn, C-54/07, para 31. Ellis and Watson (2012), p. 163. Even in that case, the respondent shall establish the actual recruitment practice of the undertaking which is corresponding with equal treatment, and the employee candidates and/or employees are not discriminated against on the basis of their race. On the other hand, the mere speech which is spread by social media channels might have a discriminatory impact on the potential candidates who are targeted in that speech.
- 63.
CHEZ Case C-104/ CJEU, para.80.
- 64.
See Wladasch (2020), pp. 237, 243.
- 65.
Benoît-Rohmer (2017), p. 163.
- 66.
CHEZ Case C-104/ CJEU, para.80.
- 67.
Ellis and Watson (2012), p. 300. With regard to EC Directive 2006/54, 2000/78 and EC Directive 2000/43 even if the conduct is not directed to a specific employee, it is enough if there is a homophobic environment in the workplace. In this case, the conduct will be considered as harassment. Vinković et al. (2016), p. 7. Discrimination should not necessarily take place against the employee. CJEU has ruled once on Case C-303/06 Coleman that limiting the scope of the Directive’s application only to the employees’ status (in this case disability) would not be suitable for the purpose of combating discrimination at the workplace (para. 51). Additionally, the concerned employee is in charge of the daily needs of her disabled child. Therefore, discriminative behavior afforded to her makes her the victim of harassment at the workplace (para. 57).
- 68.
For further review of how far the victim status can be extended and harmful the discrimination can be on third persons. Waaldijk (2013), pp. 195–196.
- 69.
Muir and Waddington (2018), p. 544. See Case C-83/14 “CHEZ”, para 50.
- 70.
- 71.
C-81/12, para. 57.
- 72.
Wladasch (2020), p. 239. For instance, consistent evidence including the existence of Equal Opportunities on Recruitment Policy. See CHEZ Case C-104/ CJEU, para. 85.
- 73.
Harris et al. (2014), p. 803.
- 74.
Arnardóttir (2017), pp. 157–159.
- 75.
Johnson (2020), p. 24.
- 76.
In a case regarding the refusal of permission regarding organizing an assembly to draw attention to discrimination against minorities including LGBs, the refusal decision did not include any indication of discrimination based on sexual orientation or any other ground. However, according to the Court, “The Court cannot speculate on the existence of motives, other than those expressly articulated in the administrative decisions complained of, for the refusals to hold the assemblies concerned in the present case. However, it cannot overlook the fact that on 20 May 2005 an interview with the Mayor was published in which he stated that he would refuse permission to hold the assemblies… However, in the present case the Court considers that in the assessment of the case it cannot disregard the strong personal opinions publicly expressed by the Mayor on issues directly relevant to the decisions regarding the exercise of freedom of assembly. It observes that the decisions concerned were given by the municipal authorities acting on the Mayor's behalf after he had made known to the public his opinions regarding the exercise of freedom of assembly and “propaganda about homosexuality”. It is further noted that the Mayor expressed these views when a request for permission to hold the assemblies was already pending before the municipal authorities. The Court is of the view that it may be reasonably surmised that his opinions could have affected the decision-making process in the present case and, as a result, impinged on the applicants’ right to freedom of assembly in a discriminatory manner.” Accordingly, the ECtHR found a violation of Article 14. See Baczkowski v. Poland, Application no. 1543/06, Judgment of 03 May 2007, paras. 97-100; Harris et al. (2014), p. 805.
- 77.
European Parliment on the proposal for a Council directive establishing a general framework for equal treatment in employment and occupation (COM(1999) 565 – C5-0068/2000 – 1999/0225(CNS), 23.
- 78.
Human Rights Watch (2018), p. 35.
- 79.
Doebler (2013), p. 24. “Traditional believers and fundamentalists in particular ─ those who believe that only their religion has any valid truth claim ─ were repeatedly found to be more homophobic than believers who are less traditionalist, and non-believers”
- 80.
- 81.
Barnes and Meyer (2012), p. 2.
- 82.
Employment Equality Regulation 2003 have come into force on the 26th of June, 2003 and prevents the employer’s unfair discrimination of employees on the basis of sexual orientation. This secondary regulation however has been revoked by the Equality Act 2010.
- 83.
Legislation.Gov.UK (2003), Explanatory Note. These regulations transform 2000/78/EC Directive into the UK legal order. Therefore, the concerned case was closely linked to the implementation and interpretation of EU law. For the news related to this case see Personnel Today, “Gay Man Refused Job by Church of England Bishop Wins Case for Unlawful Discrimination”. 2007. https://www.personneltoday.com/hr/gay-man-refused-job-by-church-of-england-bishop-wins-case-for-unlawful-discrimination/. Also see BBC, “Bishop Loses Employment Case”. 2007. http://news.bbc.co.uk/2/hi/uk_news/wales/6904057.stm.
- 84.
BBC, “Bishop Loses Employment Case”. 2007. http://news.bbc.co.uk/2/hi/uk_news/wales/6904057.stm.
- 85.
People Management, ‘Gay Priest Barred From Working After Marriage Faces New Court of Appeal Ruling’. 2018. https://www.peoplemanagement.co.uk/news/articles/gay-priest-barred-marriage-court-of-appeal-ruling#gref.
- 86.
The Guardian, “Gay Priest Forced to Wait for Verdict in Church Discrimination Tribunal”. 2015. https://www.theguardian.com/world/2015/sep/01/gay-priest-alleged-discrimination-church-of-england-employment-tribunal.
- 87.
The Guardian, “Gay Priest Forced to Wait for Verdict in Church Discrimination Tribunal”. 2015. https://www.theguardian.com/world/2015/sep/01/gay-priest-alleged-discrimination-church-of-england-employment-tribunal. Deviation from the archaic perception concerning people in same-sex partnership can be seen in Case C-267/12 Hay v Crédit agricole mutuel de Charente-Maritime et des Deux-Sèvres as the civil partnership has been introduced in some Member States of EU since then. Concerning the comparability of registered partnership and marriage as regards equal treatment upon the payment of benefits see Case C-267/12 paras. 36-37, 45, 47.
- 88.
People Management, “Gay Priest Barred From Working After Marriage Faces New Court of Appeal Ruling”. 2018. https://www.peoplemanagement.co.uk/news/articles/gay-priest-barred-marriage-court-of-appeal-ruling#gref.
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Özaltuğ, A., Yalçın, B. (2023). Workplace Discrimination Towards LGBTQ Employees and Employee Candidates in the Job Market: A European Approach to the Workplace Discrimination Towards LGBTQ. In: Krstić, I., Evola, M., Ribes Moreno, M.I. (eds) Legal Issues of International Law from a Gender Perspective . Gender Perspectives in Law, vol 3. Springer, Cham. https://doi.org/10.1007/978-3-031-13459-3_4
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