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EU court adviser says LGBT workplace protections extend to freelancers  

The advisory opinion comes in the case of a freelance editor for a Polish public television station whose contract was terminated after he and his partner released a Christmas music video with a message of tolerance for same-sex couples.

LUXEMBOURG (CN) — An adviser to the European Union’s highest court said on Thursday that discriminating against gay and lesbian freelance workers is illegal under EU law. 

Advocate General Tamara Ćapeta wrote in a nonbinding opinion for the European Court of Justice that workplace anti-discrimination regulations extend to freelancers in a case involving a Polish television editor. 

The District Court of Warsaw referred the case to the Luxembourg-based Court of Justice after a man, named in court documents as J.K., sued his former employer for 95,000 Polish zlotys ($20,200) after his contract was terminated shortly after he posted a pro-gay marriage video online in 2017. The man, together with his partner, run a pro-LGBT YouTube video and created a Christmas video called "Love us at Christmas" showing same-sex couples celebrating the holiday. 

Shortly after, his employer of seven years, Telewizja Polska S.A., ended his contract. Under Polish law, contract employees can be fired for being gay, though the Polish state media outlet claimed the termination was due to restructuring and his job had been outsourced to a creative agency. 

Ćapeta, a Croatian judge advising the EU's top court, found that allowing employers to fire freelancers based on sexual orientation violated the Equality Framework Directive. The 2000 EU regulation forbides discrimination based on disability, sexual orientation, religion or belief and age in the workplace.

“It is clear that a subject such as J.K. has … the right not to be discriminated against on the ground of his or her sexual orientation when applying for a new job or the extension of the existing working relationship,” Ćapeta wrote.

Advocate general opinions are not binding on the court but final rulings following their legal reasoning in about 80% of cases. 

Poland argued that forcing organizations to hire gay employees violates the rights of employers. Ćapeta was unsympathetic to this argument, writing that she had difficulty imagining how it could be possible to give these two rights the same weight.

“Can permission to discriminate on the basis of any of the prohibited grounds be at all part of freedom of contract in a society which is based on the value of equality?” Ćapeta asked. 

The Luxembourg-based court has ruled against homophobic employers before. In 2008, the court ruled in Tadao Maruko v. Versorgungsanstalt der deutschen Bühnen that same-sex couples must be given the same benefits as opposite-sex couples in a case involving a German man in a domestic partnership who was denied a widowers' pension when his partner died.

In Asociatia Accept v Consiliul Naţional pentru Combaterea Discriminării, the court held in 2013 that homophobic statements by employers constitute workplace discrimination, after the sponsor of a Romanian soccer club claimed he would never hire a gay footballer.

A final ruling on the Poland case is expected in the coming months.

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