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Antonella Marmo
When it is a coworker who makes offensive comments about sexual orientation toward another coworker, how should the employer act? Is it legitimate to impose a dismissal for such phrases, or would the dismissal be considered excessive? The Italian Supreme Court, in its Order No. 7029 of 09.03.2023, ruled on the importance of countering sexual discrimination in the workplace.
The case concerns an employee who was fired by a transportation company after uttering some insulting phrases towards a female colleague in a public place; the woman had then filed a complaint.
Specifically, the employee, as he had learned of her colleague’s recent delivery of twins, had started asking her questions, telling her in a dialect form “how come you turned out pregnant as well?” and further urging her “aren’t you a lesbian yourself?” and, then, in a mocking manner, “and how did you manage to turn out pregnant?” and other phrases.
The incident had occurred at the bus stop, where the colleague was waiting to take service as a driver, in the presence of other people.
Both were in uniform and therefore recognizable as company employees; the woman had pointed out the annoyance and discomfort that such a conversation had caused her and claimed respect for her dignity and privacy.
Upon learning of the incident, the transportation company had thereby decided to dismiss the employee. A first charge was brought against the employee, in which he was accused of having seriously violated the principles of the company’s Code of Ethics and the rules of civil coexistence: the employee had uttered unbecoming and offensive phrases aloud, in the presence of several users, toward a colleague.
The other charge, on the other hand, was that the employee had addressed offensive and threatening expressions to the chairman of the Disciplinary Committee.
The dismissal, however, according to the 2020 ruling of the Bologna Court of Appeals, had been considered excessive and branded simply as the employee’s “inurban behavior”. The consequence of that decision had even been to ask the transportation company to pay the driver 20 monthly salaries.
But so what should the employer do in cases like this? Tolerate inappropriate attitudes? The Italian Supreme Court has ruled on this point.
In its Order No. 7029 of 09.03.2023, the Italian Supreme Court overturned the ruling, affirming that the assessment made by the trial judge in tracing the employee’s conduct to mere “uncivilized” behavior was not in accordance with the values present in social reality and the principles of the legal system.
That is, the conduct had not been contrary only to the rules of good manners and the formal aspects of civil life, since “the content of the expressions used and the additional factual circumstances in which the employee’s behavior must be contextualized, stood in contrast to far more pregnant values, now rooted in the general consciousness and the expression of general principles of the legal system.”
According to the judges, the evolution of society in recent decades and the sensitivity to these issues is undeniable; it follows that any choice of sexual orientation deserves respect.
According to the ermines judges, “the intrusion into that sphere, carried out in a mocking manner and without regard to the presence of third persons, cannot therefore be considered according to the “modest” standard of the violation of formal rules of good manners used by the complaint judge, but must be assessed taking into account the centrality that in the design of the Constitutional Charter assume the inviolable rights of man (Art. 2), the recognition of equal social dignity, “without distinction of sex”, the full development of the human person (art. 3), and work as a sphere of expression of the individual’s personality (art. 4), the object of special protection “in all its forms and applications” (art. 35).
This regulatory context then found further development in a series of anti-discrimination provisions on sexual matters, such as Legislative Decree No. 198/2006, Art. 26, aimed at guaranteeing specific and differentiated protection – through the mechanism of assimilation to the case of discrimination – to the position of those who find themselves subjected in the context of the employment relationship to undesirable behavior for reasons related to sex” (to which is also added the increasingly strong discipline of employee privacy protection and the principle of respect for sensitive data referring to the person).
In this context, the Italian Supreme Court invited the Court of Appeals to “review the overall case in order to verify the existence of just cause for dismissal in light of the correct scale of reference values as reconstructed above.”
The recent Italian Supreme Court ruling highlights the importance of the appropriate and up-to-date legal approach to employment discrimination issues, as well as respect for constitutional principles and social values. The Canella Camaiora Law Firm, aware of the impact of this judgment on the employment field, is committed to offering its clients high-level legal assistance, with particular attention to issues of discrimination and respect for employees’ rights. Thanks to the experience gained and the expertise of its professionals, the Firm is able to provide specific and personalized advice to effectively address any legal situation in the employment field, ensuring the protection of the rights and enhancement of the dignity of individuals.
Antonella Marmo
