Exceptions

AuthorFavilli, Chiara
Pages35-45
35
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 fi rst part of Ar ticle 3(3) of Legislative Decrees 215/2003 and 216/2003 establishes
that ‘in compliance with th e principles of proportionality and reasonableness’ , wi thin 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 natu re of the parti cular occupational activit y
concerned or of the context in which it is carried out, such characterist ics constitute a
genuine and d etermining occupational requirement’. No definition of ‘proportionality’ and
‘reasonableness’ is given. The substitution of the requirement for a ‘legitimate objective’
with ‘reasonableness’ has not led to any practical effects.
In the case of Legisl ative Decree 2016/2003 transposing Di rective 2000/78/EC, the same
section also establishes that it is not discriminatory to evaluate ‘such characteristi cs when
they are relevant t o establish whether a person is suitable to carry out the functions th at
the armed forces and the police, prison and rescue services can be called on to carry
out’, while the following section establishes (wit hout distinguishing between the di fferent
grounds of discrimination) that ‘however, the provision r emains unaffected that imposes
a suitability test for a specifi c occupation and the provisions allowing different tr eatment
with regard t o adolescents and young people linked t o the speci al nature o f the
occupation and to legitimate objectives of labour pol icy, the labour market and
professional education’. The inclusion of all the g rounds under this provision on ‘work
suitability tests’ p robably provides too much discretion in admitting exceptions to equal
treatment going beyond genuine and determining occupati onal 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 excepti on.
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 i t off. She had appli ed for a
job as a hostess at an exhibition, where she had to hand out leaflets. The job
requirements were al l related to physica l characteristics, including ‘flowing hair’. Onl y
some of them were highlighted as basic requirements: shoe size 37 an d d ress size 40-
42. The Tribunal of Mil an, in the first i nstance, rejected the claim of discrimination on the
grounds of religion on account of the ‘genuine and determining occupational requi rement’
exception. However, the Court of Appeal of Milan, in the second instance, found that this
was a case of direct discrimination on the g rounds 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 characteristi c, but as a secondary requirement. The C ourt of
Appeal ordered the company to pay EUR 500 in non-pecuni ary damages.
4.2 Employers with an ethos based on religion or belief (Article 4(2) Directive
In Italy, national law provides for an exception f or employers with an ethos based on
religion or belief.
Article 3(5) of Legisl ative Decree 216/2003 transposi ng Directive 2000/78/EC establi shes
that ‘Differences in treatment based on reli gion or belief and enacted within churches and
other public or private organisations do not constitute discriminatory acts where, by

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