Orientamento sessuale e lavoro nelle Organizzazioni di tendenza, basate sulla religione o sul credo
Marco Peruzzi, Professore Associato di diritto del lavoro nell’Università di Verona
Anna Zilli, Professore Associato di diritto del lavoro nell’Università di Udin
Il documento si concentra sulla protezione dei lavoratori dalle discriminazioni basate sull’orientamento sessuale, all’interno delle organizzazioni di tendenza basate sulla religione o sul credo. In particolare, l’analisi sottolinea la differenza tra la clausola generale di “giustificazione oggettiva” prevista dall’art. 4, par. 1, dir. 2000/78/CE e la clausola speciale prevista dall’art. 4, par. 2, dir. 2000/78/CE per quanto riguarda le predette organizzazioni. Nella seconda parte lo scritto si concentra sulle discriminazioni nelle assunzioni, intese come forma più subdola di esclusione dall’impiego.
The paper focuses on the protection of employees against discriminations on the ground of sexual orientation, within religion or belief-based organisation. In the first part the analysis stresses the difference between the general ‘objective justification’ clause provided by art. 4, par. 1, dir. 2000/78/EC and the special clause provided by art. 4, par. 2, dir. 2000/78/EC regarding religion or belief-based ethos organization. In the second part the paper focus on the protection of the jobseeker, also considering the burden of proof.
Keywords: sexual orientation – religion or belief-based ethos organization – definition – protection – worker – hiring – sanctions.
1. Introduction - 2. The so called GOR exemptions in Directive 2000/78/EC - 3. Expression of sexual orientation and of related beliefs in organisations with religion or belief-based ethos - 4. Sexual orientation and hiring process in organisations with religion or belief-based ethos - 5. Punish or perish: the removal of the discrimination - NOTE
The purpose of this paper is to examine the protection of employees against discriminations on grounds of sexual orientation, within churches and other public or private organisations, whose ethos is based on religion or belief. The analysis is structured as follows . In the first part, Paragraphs 2 and 3 analyse the regulatory framework as laid down by Dir. 2000/78/EC, focusing on the scope of the possible exemptions from the equality principle. After explaining why sexual orientation can never constitute a legitimate and justified occupational requirement in itself, two questions will be addressed. Specifically, the analysis will investigate on whether the above-mentioned organisations can require their workers not to express their convictions in favour of gay rights or to express the different beliefs on this matter embraced by the organisation; as well as on whether they can require their workers not to declare or make known their same-sex relationships, at least in the workplace. The second part of this paper will focus on these unlawful practices in religion or belief-based ethos organisations. Paragraphs 4 and 5 consider the effectiveness of the regulatory framework in the management of the employment relationship, calling for particular attention to the hiring process. It is well-known that the phase of recruiting is the less effective stage in the protection of the (still not) employee. Such discrimination occurs when an employer selects a candidate based [continua ..]
2. The so called GOR exemptions in Directive 2000/78/EC
All the EU directives concerning workers’ protection against discrimination allow a derogation from the principle of equality when a specific requirement is necessary to carry out the occupational activities involved in the employment relationship. This is the so called GOR exemption . For the purposes of this analysis, one main aspect is worth noting: the provisions regulating this general exemption allow a GOR to be represented only by a characteristic related to a covered ground, not by a covered ground as such. This was also stressed by the ECJ when dealing with the case of workers wearing items of clothing connected to a specific religion  as well as of workers loosing particular physical capacities over a certain limit of age. Only Directive 2000/78/EC adds a further and specific GOR exemption, to be applied within organisations whose ethos is based on religion or belief . When comparing the general GOR exemption with this latter one, two relevant differences can be highlighted. In the case of the special GOR exemption, which is regulated by Art. 4.2, it is the covered ground as such, and not a mere characteristic related to it, that can constitute the necessary occupational requirement. The grounds that can be considered as a GOR under this provision are the ones qualifying the ethos of the above-mentioned organisations, namely religion or belief. Secondly, the special GOR exemption seems to have a broader scope than the general one, [continua ..]
3. Expression of sexual orientation and of related beliefs in organisations with religion or belief-based ethos
Any debate on the possibility for ethos-based organisations to require their employees not to express their convictions in favour of gay rights implies a preliminary reflection on two aspects: the notion of belief applicable for the purposes of Art. 4.2 and the extent to which a difference of treatment based on a belief can imply a difference of treatment based on another ground, such as sexual orientation. Directive 2000/78/EC does not define the notion of belief nor a definition can be found in any EU legislative source. In order to understand what is covered by this notion, one needs to refer to both the rulings of the ECJ and of the ECHR . According to the rulings of the ECHR, whereas the concept of belief is broad and it does not necessarily imply religious convictions, it is not so broad to include all opinions or convictions. Specifically, in order to benefit from the right to «freedom of thought, conscience and religion», a personal or collective conviction must attain «a certain level of cogency, seriousness, cohesion and importance» . For the purposes of this analysis, it is noteworthy that these arguments were confirmed in the Judgment related to the case Eweida and Others v. the United Kingdom. This Judgement concerned, among others, the case of Ms Ladele, a marriage registrar, who refused to register and perform same-sex civil partnerships as she held «the view that marriage is the union of one man and one woman [continua ..]
4. Sexual orientation and hiring process in organisations with religion or belief-based ethos
When discussing discrimination with respect to an employer as an organisation with religion or belief-based ethos, the topic is usually dealt with reference to dismissal, as is the case in most cases with jurisprudence linked to discrimination. The subject of discrimination in access to work is much more insidious, both in relation to the case in question and in relation to the sanction for the violation of the principle of non-discrimination. First, we will focus on identifying discrimination in access to, or expectations of, work. It is a question of understanding the limits to which an employer, whether entrepreneur or not, is subjected in choosing the personnel to be hired. It is said that the employer is free to hire anybody he/she wants, as long as his/her behaviour does not result in discrimination, as defined by the directives 2000/43 /EC and 2000/78/EC. But it is also known that in the assumption phase the worker, or rather the jobseeker, is in a particularly weak condition, which leads to not reporting the possible employer’s misconduct. The jurisprudence, both of the national courts and of the European Court of Justice, is really minimal. In the case of Feryn NV , the Court questioned the application of Directive 2000/43/EC on equal treatment regardless of race and ethnic origin, in the case of an entrepreneur who, at the beginning of 2005, placed on the corporate land a large billboard for the search for personnel and, at the same time, openly [continua ..]
5. Punish or perish: the removal of the discrimination
Having established the limits of the discriminatory case in some way, now it seems necessary to address the issue of protection offered to those who see themselves refused as employees in relation to their sexual orientation. In fact, it must be remembered that the removal of the damaging effects deriving from the employer conduct represents, together with the compensation, the relief for the prejudices suffered. On several occasions, and also in the judgments mentioned above, the European Court of Justice has referred to the national judges for the identification of the methods and measure of the sanctions to be imposed for the violation of European law. On the rare occasions when the judges had the opportunity to pronounce themselves about discrimination in access to work, they have otherwise solved the questions on the subject of protection requested by the parties. For example, in the case faced by the Court of Rovereto (TN) in the ordinance of June 21, 2016  and confirmed in appeal in 2017  a private school , run by nuns, was sentenced for not having renewed a term contract to a teacher because of her sexual orientation. On that occasion, the appellant requested (in addition to compensation for damages resulting from the damage to personal dignity and the resulting media exposure) also the judgement of the institution to offer an open-ended job proposal, having the characteristics of the last contract to fixed term or, alternatively to the [continua ..]