Discrimination on the grounds of sexual orientation

Discrimination with respect to sexual orientation refers to different treatment on the basis of an individual or group’s sexual preference.

In establishing a general framework for equal treatment in employment and occupation, Council Directive 2000/78 prohibits discrimination on the grounds of sexual orientation. It goes some way towards reversing the consequences of the decision of the European Court of Justice that EC law did not prohibit such discrimination on the grounds that sexual orientation discrimination was outside EU competence (see Grant v. South-West Trains (Case C-249/96, [1998]). The decision was widely criticised for retreating from the principle of prohibiting discrimination based on sex, established in the earlier ECJ decision in P v. S and Cornwall County Council, Case C-13/94 [1996]. Although not in effect for consideration in the Grant case, the Treaty of Amsterdam provided that the Community could ‘take appropriate action to combat discrimination based on… sexual orientation’ (Article 13). This was pointed out by the ECJ in its judgment, implying that the fundamental right at issue in Grant could have been protected in the event of Article 13 conferring EU competence. Council Directive 2000/78 now accomplishes this purpose.

See also: discrimination; equal treatment; harassment in the workplace; non-discrimination principle.