Homophobic Comments Were Evidence of Discrimination

Homophobic comments made by a football club’s shareholder were evidence of discrimination.

In Asociaţia ACCEPT v Consiliul Naţional pentru Combaterea Discriminării, the shareholder of a football club said he would sooner close down the club than recruit a homosexual footballer.  The ECJ was asked whether these comments could give rise to a prima facie case of discrimination in circumstances where the shareholder did not have the power to recruit players but was perceived as playing a leading role in the club. The ECJ found that they could. Statements concerning a recruitment policy did not need to come from a person with power to make the policy or to make recruitment decisions.  It also said that the fact that the club did not distance itself from the statement could be taken into account as evidence of discrimination. 

Although this would not mean that a case of discrimination was proven, it does mean that a tribunal would look to the employer to prove a non-discriminatory reason for its actions, for example in failing to recruit a homosexual candidate.  The fact that the shareholder had no say in recruitment did not help the employer at all.  The case reinforces the need for employers to make it clear to staff and others associated with them that discrimination is unacceptable and that everyone needs to understand this and behave accordingly.  The Court did suggest that had the employer distanced itself from the comments at the time they were made, this might have helped it to disprove discrimination. Employers should therefore act quickly to address discriminatory behaviour where it is within their power to do so and to distance themselves from those whose behaviour is discriminatory.