Italian court upholds freedom from discrimination on basis of sexual orientation

Roverto Court Order of 21 June 2016 (Sacred Heart Case)

Summary
This appeal was brought in the Rovereto Court (Court) by a teacher employed by the Institute of the Daughters of the Sacred Heart of Jesus (Institute) in Rovereto, located in Northern Italy. The Institute had demanded that the applicant confirm her sexual orientation, and when she failed to do so they did not renew her employment contract. Further, the Institute and its legal representatives publicly made comments in relation the applicant’s alleged homosexuality.

The applicant argued that this conduct was discriminatory and defamatory, and violated the principle of equal treatment set out in Article 2, paragraph 1 of Legislative Decree 216/03. The Court upheld the appeal and found that the Institute had discriminated against the applicant on the basis of her sexual orientation. The Court rejected the Institute’s submission that its conduct fell under an exception on the basis of religious beliefs.

In doing so, the Court upheld the freedom from discrimination on the basis of sexual orientation. The applicant was awarded a significant amount of compensation.

Facts
In July 2014, one of the Sisters at the Institute requested a meeting with the applicant who was employed as a teacher at the time. The applicant had been employed on a series of fixed term contracts. During this meeting the Sister alleged that there were rumours going around that the applicant was in a romantic relationship with another woman. The Sister asked the applicant to deny these rumours, or at least agree to ‘address the problem’ of her homosexuality.

The Sister continued to ask questions about the sexual orientation of the applicant, however the applicant refused to discuss the details of her private life. The Sister became very angry and said that she ran a religious institution in which there were children which she needed to protect. At this point the applicant ended the meeting.

The applicant’s fixed term contract had just ended at this time, and was not subsequently renewed by the Institute (despite having been renewed in the past). The applicant brought an action for discrimination based on the comments made by the Sister, the Institute and its legal representatives both privately and publicly. Furthermore, the applicant argued that her employment contract was not renewed on the basis of her sexual orientation. The defendant denied any discrimination, but rather argued that their assessment of the teacher was in adherence to the religious principles and ethics of the school.

Decision
The Court held that the Institute had clearly violated the principle of equal treatment under Article 2, paragraph 1 of Legislative Decree. The Institute had made discriminatory statements publicly and privately that they do not want to employ teachers who are homosexual or thought to be homosexual. Furthermore, this conduct defamed the applicant. However, the Court did note that there is no presumption of continuing employment where an employee is employed on a fixed term contract.

It was ordered that an extract of the decision be published in at least one national newspaper in a format which ensures adequate visibility. The Institute was ordered to make an offer of permanent employment to the applicant or alternatively pay an amount equal to fifteen monthly instalments calculated on the amounts of the last employment contract amounting to €25,344.00, plus compensation for financial loss and non-pecuniary damages in the sum of €16,000 for discriminatory conduct and €72,000 for making defamatory allegations.

The Institute was also ordered to pay €12,000 to CGIL Trentino and the Radical Association Certain Rights. Costs were awarded against the Institute.

Commentary
This decision is significant as it confirms the existence of the right to freedom from discrimination on the basis of sexual orientation. Further, it makes clear that religious organisations cannot rely on their particular beliefs to protect them from discrimination actions. It is discriminatory conduct to base professional evaluation of an employee on their sexual orientation.

This decision marks an important development in the international protection of rights in relation to sexual orientation and sexual identity.

The full text of Rovereto Court Order of 21 June 2016 (Sacred Heart Case) can be found here (note the decision is in Italian).

Loren Giles is a Graduate at King & Wood Mallesons.