Exceptions

• Author: Chiara Favilli
• Pages: 34-43

34

4 EXCEPTIONS

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

2000/78)

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:

http://www.asgi.it/wp-content/uploads/2016/05/Corte-d%E2%80%99Appello-di-Milano-sentenza-del-20-

maggio-2016-pres.-Vitali-rel.-Casella-XXX-avv.ti-Guariso-e-Neri-c.-Evolution-Events-srl-avv.to-Bertozzi.pdf.