Answer given by Mrs Reding on behalf of the Commission
26.10.2010
Discrimination in employment on certain grounds, including sexual orientation, is prohibited under the Employment Equality Directive 2000/78/EC[1]. Article 4 of the directive provides for a limited exception from that prohibition where a conflict arises between fundamental rights and allows a difference in treatment not to constitute discrimination in certain circumstances.
In particular, Article 4(2) of the directive allows organisations the ethos of which is based on religion or belief to take a person’s religion or belief into account, where necessary, when recruiting personnel and to require their personnel to show loyalty to that ethos. That paragraph makes it clear, however, that any difference in treatment should not justify discrimination on grounds other than of religion or belief.
Article 4(1) of the directive applies to all employers and allows requirements relating to other characteristics (religion or belief, sexual orientation, age or disability) to be taken into account where they are essential for the job in question. It provides for a strict test to determine whether a difference in treatment may be considered non-discriminatory: the occupational requirement must be genuine and determining, the objective must be legitimate and the requirement proportionate.
This issue has not yet come before the Court of Justice of the European Union. In any case, in conformity with the jurisprudence of the Court, any exceptions from EC law need to be interpreted narrowly. While it is difficult to make a statement about a hypothetical case, the Commission fails to see how a teacher’s sexual orientation could reasonably constitute a genuine and determining occupational requirement.
When they are implementing Union law all government institutions should observe the principle of equal opportunities and non-discrimination in line with the Treaties and the Charter of Fundamental Rights of the European Union.
- [1] Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, OJ L 303, 2.12.2000, p. 16.
OJ C 243 E, 20/08/2011