Can sexual orientation be a reason for refusing a contract to a freelancer? If the question may shock, and the negative answer is very clear in more and more countries, the Court of Justice of the European Union (CJEU) has decided to include this case in the anti-discrimination provisions at work. This broadening of the definition responds to an action for damages brought by a Polish self-employed worker.
He felt that the local public television refused to extend the collaboration because of his sexual orientation. The man, whose identity has not been revealed, saw his long collaboration with public television stopped in 2017, based on a series of consecutive short-term corporate contracts. The cessation came as he and his partner released a Christmas music video aimed at promoting tolerance for same-sex couples.
The individual case referred to Polish justice
In its decision, the Court based in Luxembourg ruled that the notion in force of “conditions of access to employment, to self-employed activities or to work (…), must be understood in a broad manner, covering access to any professional activity, whatever its nature and characteristics”, regardless of the “form of salaried and self-employed activity, regardless of the legal form under which this activity is exercised”.
Admitting that freedom of contract makes it possible to refuse to contract with a person on the grounds of sexual orientation “would deprive Directive 2000/78 (in force, establishing a general framework for equal treatment in employment and work), and the prohibition of any discrimination based on such a ground, of its useful effect”, explained the CJEU. The European Court, however, left it to the Polish courts to assess whether the activity in question meets the criteria defined by European law.