ECJ rules against Polish workplace LGBTQ discrimination
Sexual orientation cannot be a reason to refuse to conclude a contract with a self-employed worker
The Directive on equal treatment in employment and occupation, which covers a wide range of occupational activities, establishes a general framework for combatting discrimination based, inter alia, on sexual orientation.
The Court of Justice of the European Union (CJEU) Thursday ruled to recognise the right of self-employed persons not to be discriminated against on the basis of their sexual orientation.
The court found that EU protection against discrimination includes people engaged in personal work, irrespective of the form that this takes, as long as the work is genuine and carried out in the context of a stable legal relationship. The CJEU reiterated that sexual orientation cannot be a ground for refusing, ending or refusing to renew a contract with a self-employed worked.
The case was brought by JK, who sought compensation from Polish public television broadcaster Telewizja Polska (TP) based on the claim that the broadcaster breached the principle of equal treatment on the grounds of sexual orientation. JK is a member of the LGBTIQ+ community and is actively involved in activism involving this community, including on their popular YouTube channel.
Rosa Oyarzabal Arigita, the lawyer acting on behalf of JK, added:
The CJEU is clear: whether employed or self-employed, everyone is protected against discrimination based on their sexual orientation. Who you love does not determine whether you are capable to perform a job or task. Member States cannot allow discrimination under the pretense of freedom to contract.
JK worked with TP for seven years on short term contracts. In December 2017, JK and his partner released a music video on their YouTube channel aimed at “promoting tolerance towards same-sex couples.” The video, entitled “Pokochaj nas w święta” (“Love us, Christmas time”), showcased a celebration of Christmas holidays by same-sex couples.
After the video was posted, JK’s shifts were cancelled and TP announced its decision not to contract his services anymore. The Polish government argued that, when dealing with contractors, a self-employed person was not bound by an employment relationship in the context of dismissals.
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