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Self-employment: is there protection against sexual orientation discrimination?

Published in: Employment law
by Antonella Marmo
Home > Self-employment: is there protection against sexual orientation discrimination?

As diversity and inclusion have become key priorities, issues of discrimination in the workplace are in the spotlight. Recently, the EU Court of Justice issued a key ruling (on 12.01.2023, in Case C-356/21,) that has significant implications for equal treatment in employment regardless of sexual orientation. This article will discuss the European directive framing these issues, analyzing a specific case of employment discrimination in Poland. The goal is to explore the principle of equal treatment in employment and to understand how European institutions are working to create a more equitable and inclusive work environment.

The European Legal Framework for Equal Treatment at Work

Equal treatment at work is a fundamental principle that the European Union has strongly supported and promoted over the years. Council Directive 2000/78/EC, for instance, establishes a general framework for equal treatment in employment and occupation, which includes a number of key principles and rights. This directive provides that everyone has the right to equal opportunities and fair treatment in the workplace, regardless of personal characteristics such as sexual orientation. The directive aims to eliminate all forms of discrimination in the workplace and to create a more inclusive and welcoming working environment for all.

The Case: Employment Discrimination Based on Sexual Orientation

In the recent case brought to the EU Court of Justice, a self-employed man in Poland claimed that he had been discriminated against on the basis of his sexual orientation. The man, a media professional, had a stable working relationship with a company that operates a national public television channel.

However, after the release of a video promoting tolerance for same-sex couples, his working relationship with the company was compromised and his contracts were not renewed.

Interpretation and Implications of the EU Court of Justice Ruling.

The January 12, 2023 ruling by the EU Court of Justice provides a hard-hitting interpretation with important implications for equal treatment in employment, regardless of sexual orientation. The decision ruled that sexual orientation cannot be used as a legitimate basis for refusing to sign or renew an employment contract, regardless of whether the worker is an employee or self-employed. The ruling determined that the court has the responsibility to examine, taking into account all relevant circumstances and the Equal Treatment Act, whether the exclusion of the contractor’s freedom of choice constitutes direct or indirect discrimination based on the plaintiff’s sexual orientation.

Should the court ascertain such discrimination, it cannot be justified by any of the reasons expressed in Article 2(5) of Directive 2000/78. The latter provides for certain exceptions relating to public safety, public order, prevention of crime, and protection of health and the rights and freedoms of others.

The relevant national legislation, namely Article 5(3) of the Equal Treatment Act, appears to promote the protection of freedom of contract by allowing the free choice of a contractor, provided that this choice is not based on sex, race, ethnic origin or nationality. However, the exceptions provided to this freedom of contract show that the legislature considered discrimination unnecessary to ensure freedom of contract in a democratic society.

Indeed, Directive 2000/78 opposes any national legislation that, by virtue of the freedom of choice of the contracting party, excludes protection against discrimination based on a person’s sexual orientation in the context of entering into or renewing a contract related to the performance of certain services in the context of an activity.

Road to a future without discrimination

The EU Court of Justice ruling represents a key moment in the fight against discrimination in the workplace. This case highlights not only the importance of an inclusive and respectful work environment, but also the responsibility of organizations and national authorities to ensure that workers’ fundamental rights are respected at all times.

In the context of self-employment, where contracts can be more precarious and legal protection less certain, the ruling takes on particular importance. By recognizing that discrimination based on sexual orientation is impermissible, regardless of the nature of the employment contract or employment relationship, the Court reaffirms the fundamental principle of equal treatment.

However, like any legal ruling, this one does not completely resolve the issue of discrimination in the workplace. It remains crucial for companies, self-employed individuals, and organizations to work together to promote a respectful and inclusive work environment. At the same time, European and national institutions must continue to strengthen and enforce laws that protect all workers from discrimination.

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Publication date: 29 August 2023
Last update: 20 September 2023

Antonella Marmo

A Lawyer at the Canella Camaiora Law Firm, a member of the Milan Bar, she focuses on Commercial and Employment Law.
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