AuthorChiara Favilli
4.1 Genuine and determining occupational requirements (Article 4)
In Italy, national legislation provides for an exception for genuine and determining
occupational requirements.
The first part of Article 3(3) of L egislative Decrees 215/2003 and 216/2003 establishes
that ‘in compliance with th e principles of proportionality and reasonableness’, within the
employment relationship or entrepreneurial activity, differences in treatment due to
characteristics related to the grounds set out in the directives are not considered as
discriminatory acts where, ‘by reason of the na ture of the particular occupational activity
concerned or of the context in which it is carried out, such characteristics constitute a
genuine and d etermining occupational requirement’. No definition of ‘proportionality’ and
‘reasonableness’ is given. Th e substitution of th e requirement for a ‘legitimate objectiv e’
with ‘reasonableness’ has not led to any practical effects.
In the case of Legislative Decree 2016/2003 transposing Directive 2000/78/EC, the same
section also establishes that it is not discriminatory to evaluate ‘such ch aracteristics when
they are relevant to establish whether a person is suitable to carry out the functions that
the armed forces and the police, prison and rescue services can be called on to carry out’,
while the following section establishes (without distinguishing between the different
grounds of discrimination) that ‘however, the provision remains unaffected that imposes a
suitability test for a specific occupation and the provisions allowing different treatment with
regard to adolescents and young people linked to the special nature of the occupation and
to legitima te obj ectives of labour policy, the labour market an d professional education ’.
The inclu sion of all the grounds under this provision on ‘work suitability tests’ probably
provides too much discretion in admitting exceptions to equal treatment going beyond
genuine and determining occupational requirements.
A reference to genuine and determining occupational requirements as exceptions to the
prohibition of discrimination is provided in Article 43(2)(e) of the Immigration Decree.
There are no specifications for how to apply this exception.
In a case decided in 2016, a Muslim woman claimed that a company had not selected her
because she wore a headscarf and would not agree to take it off. She had applied for a job
as a hostess at an exhibition, where she had to hand out leaflets. Th e job requirements
were all related to physical characteristics, including ‘flowing hair’. Only some of them were
highlighted as basic requirements: shoe size 37 and dress size 40-42. The Tribunal of
Milan, in the first instance, rejected the claim of discrimination on the grounds of religion
on account of the ‘genuine and determining occupational requirement’ exception. However,
the Court of Appeal of Milan, in the second instance, found that this was a case of direct
discrimination on the grounds of religion and that the ‘genuine and determining
occupational requirement’ exception was not satisfied, since the advertisement was for the
post of hostess, and ‘flowing hair’ was not required as a genuine and determining
characteristic, but as a secondary requirement. The Court of Appeal ordered the company
to pay EUR 500 in non-pecuniary damages.61
4.2 Employers with an ethos based on religion or belief (Article 4(2) Directive
In Italy, national law provides for an exception for employers with an ethos based on
religion or belief.
61 Court of Appeal of Milan, judgment of 20 May 2016, Mahmoud Sara v. Evolution Events Srl, available at:

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