Exceptions

• Author: Favilli, Chiara
• Pages: 35-45

35

4EXCEPTIONS

4.1Genuine 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 Legislative Decrees 215/2003 and 216/2003 establishes

that ‘in compliance with the 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 nature of the particular occupational activity

concerned or of the context in which it is carried out, such characteristics constitute a

genuine and determining 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 Legislative Decree 2016/2003 transposing Directive 2000/78/EC, the same

section also establishes that it is not discriminatory to evaluate ‘such characteristics 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 legitimate objectives of labour policy, the labour market and

professional education’. The inclusion 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. The 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 secondaryrequirement. The Court of

Appeal ordered the company to pay EUR500 in non-pecuniary damages.

4.2Employers with an ethos based on religion or belief (Article 4(2) Directive

2000/78)

In Italy, nationallaw provides for an exception for employers with an ethos based on

religion or belief.

Article 3(5) of Legislative Decree 216/2003 transposing Directive 2000/78/EC establishes

that ‘Differences in treatment based on religion or belief and enacted within churches and

other public or private organisations do not constitute discriminatory acts where, by