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Top EU court rules LGBT workplace protections cover freelancers

The judges found anti-discrimination regulations protecting workers from facing repercussions for their sexuality extend beyond regular staff.

LUXEMBOURG (CN) — The European Union’s highest court ruled Thursday that workplace anti-discrimination regulations extend to freelancers, siding with a Polish video editor who was fired after posting a pro-LGBT message on social media. 

The European Court of Justice said excluding freelancers from the EU's Equality Framework Directive would leave them vulnerable to discrimination. The judges were unsympathetic to Poland’s argument that employers shouldn’t be forced to hire gay people. 

The directive "seeks to eliminate, on grounds relating to social and public interest, all discriminatory obstacles to access to livelihoods and to the capacity to contribute to society through work, irrespective of the legal form in which it is provided," the Luxembourg-based court wrote.

The District Court of Warsaw referred the case to the 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, created a Christmas video called "Love Us at Christmas" showing same-sex couples celebrating the holiday. 

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

The self-employed were already more at risk of discrimination because of the nature of their employment, the court’s Second Chamber found. The judges held that the Equality Framework Directive intended for a broad understanding of workplace and employment conditions, which includes freelance contracts. 

The five-judge panel largely followed the legal arguments of its advocate general, whose nonbinding opinion in the case was released last year. Croatian judge Tamara Ćapeta found that freedom from discrimination was a basic right in the EU.

“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 wrote, saying she had difficulty imagining how it could be possible to give these two rights the same weight.

The Equality Framework Directive is a major part of EU labor law and protects workers from mistreatment on the grounds of disability, sexual orientation, religion or belief and age. 

The EU court has frequently ruled against homophobic employers. In 2008, judges held 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 after the death of his partner.

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

The case against TP now returns to the Polish court for a final ruling. 

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