In the recent case of Asociaţia ACCEPT v Consiliul Naţional pentru Combaterea Discriminării, the European Court of Justice (ECJ) was asked to clarify whether homophobic comments made by a football club’s “banker” were in breach of the Equal Treatment Framework Directive (2000/78/EC) and accordingly, whether the burden of proof could fall on the club to prove that it did not have a discriminatory recruitment policy in place.
The Equal Treatment Framework Directive provides a framework for combating discrimination in employment or occupation on the grounds of religion/belief, disability, age or sexual orientation. Whilst the Directive provides a general framework, it is for individual EU countries to decide how the Directive should be implemented.
In 2010, ACCEPT, an organisation campaigning for gay rights, lodged a complaint against a Romanian football club (FC Steaua) and its “banker”, Mr Becali, after Mr Becali announced that "not even if I had to close [FC Steaua] down would I accept a homosexual on the team". ACCEPT claimed that the homophobic statements made by Mr Becali were in breach of the Equal Treatment Framework Directive. Mr Becali was not responsible for engaging players; however, he had close ties with FC Steaua and was also a shareholder. In relation to the other defendant, FC Steaua, ACCEPT maintained that it had failed to distance itself from Mr Becali following his comments.
The ECJ held that the fact that the discriminatory statements did not come directly from FC Steaua was not a bar to establishing the existence of “facts from which it may be presumed that there has been discrimination” within the meaning of the Directive. Furthermore, FC Steaua could not rely on the fact that Mr Becali was not capable of legally binding it in recruitment matters; Mr Becali presented himself and was considered by the public to play a leading role in the club and therefore it was arguable that he could be perceived as being capable of influencing recruitment decisions.
As a result, the court held that the burden of proof was shifted to the football club for it to prove that it did not have a discriminatory recruitment policy. When deciding what evidence could be presented by the club, the court held that it was not necessary for it to adduce evidence which interfered with the right to privacy, for example, it needn’t show that it had recruited persons with a specific sexual orientation in the past. Suspected discrimination on the grounds of sexual orientation could be refuted with a body of “consistent evidence”; for example, the existence of an Equal Opportunities Recruitment Policy.
The ECJ’s decision in this case has clarified how the Directive should be interpreted and implemented. Its decision is also binding on other national courts and tribunals.
The case highlights that an organisation can be vicariously liable for discriminatory comments made by an individual, irrespective of whether, in practice, that individual could force or influence an employer to act in a discriminatory manner. The key factor here was that Mr Becali played an important management role and was publicly associated with the club.
When determining whether the club’s recruitment policy was discriminatory, the court relied on several factors; perhaps, most significantly, the fact that the club didn’t disassociate itself from Mr Becali following his comments. Needless to say, it is important for employers to be aware that a failure to address discriminatory comments made by an employee can create a perception of implied agreement.