• No results found

Report of the European Group of Experts

N/A
N/A
Protected

Academic year: 2021

Share "Report of the European Group of Experts "

Copied!
30
0
0

Bezig met laden.... (Bekijk nu de volledige tekst)

Hele tekst

(1)

377

in employment:

legislation in fifteen EU member states

Report of the European Group of Experts

on Combating Sexual Orientation Discrimination

1

about the implementation up to April 2004 of

Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation

14 Portugal

by P. Miguel Freitas

2

1The European Group of Experts on Combating Sexual Orientation Discrimination

(www.emmeijers.nl/experts) was established and funded by the Commission of the European

Communities under the framework of the Community Action Programme to combat discrimination 2001- 2006 (http://europa.eu.int/comm/employment_social/fundamental_rights/index_en.htm).

The contents of the Group’s report do not necessarily reflect the opinion or position of national authorities or of the European Commission. The report, submitted in November 2004, aims to represent the law as it was at the end of April 2004; only occasionally have later developments been taken into account.

The full text of the report (including English versions of all 20 chapters and French versions of most chapters, plus summaries of all chapters both in English and French) will be published on the website just mentioned; links to it will be given on www.emmeijers.nl/experts.

2Mr. P. Miguel Freitas (mlfreltas@hotmail.com), judge in the 1st Criminal Court for the County of Paredes, Portugal.

(2)

378 14.1 General legal situation Addendum

On 24 July 2004, Constitutional Law no. 1/2004 was published, effectively amending the Portuguese Constitution so that it now explicitly bans sexual orientation discrimination. This amendment came into force on 31 July 2004 on the mainland, and on 10 August 2004 in the Regions of Madeira and Azores.

14.1.1 Constitutional protection against discrimination

The Portuguese Constitution (hereinafter, the Constitution)

3

contains not only a general, explicit, clause of equality and non-discrimination, but also a large number of provisions concerning equality in general or in specific areas of social, economic, and political life

4

. As recently as 1997, article 26(1) of the Constitution was amended, in order to recognise to ‘everyone (…) the right to (…) legal protection against any form of discrimination’

5

.

Although the principle of equality and non-discrimination is not generally considered to be, per se, a fundamental right but only a principle guiding the enforcement of constitutionally protected rights

6

, it too is considered to be

‘directly applicable to, and binding on, both public and private bodies’, as explicitly stated in article 18(1) of the Constitution (for provisions dealing with fundamental rights

7

), even if there is some disagreement on how to construe this direct applicability regarding private entities, a question that the Portuguese Constitutional Court (hereinafter, Constitutional Court) has yet to clarify

8

.

In the field of employment and professional occupation, however, most of the authors tend to agree that since, ordinarily, there is no real equality between employers and employees, the principle of equality and non-discrimination (either directly or through the mediation of private law) has an important role to play in the protection of workers against arbitrary and discriminatory treatment.

Sexual orientation is not explicitly mentioned in any provision of the

Constitution. This, however, does not necessarily mean that sexual orientation is not covered by the right to equality as enshrined in Portuguese constitutional law.

Firstly, the list of prohibited grounds of discrimination contained in article 13 of the Constitution is not exhaustive and includes only those grounds that its framers considered, at the time of its adoption (in 1976), as the most historically

3Last revised by the Constitutional Law no. 1/97 of 20 September 1997 (some subsequent smaller changes have been introduced afterwards). An English version of the Portuguese Constitution is available at the Portuguese Parliament’s website (www.parlamento.pt ). Any citations to the Portuguese Constitution throughout the text are taken from this translation, unless otherwise stated. Translation of other statutes and bills mentioned in the text are of the author’s sole responsibility.

4See, e. g., articles 9(d)(h), 10(1), 15(1), 35(3), 36(1)(3)(4), 37(1), 47(2), 50(1), 55(2), 58(2)(b), 59(1)(a), 69(1), 73(1)(2), 74(1)(2)(h), 76(1), 81(b), 93(1)(c), 104(1)(3), 109, 113(3)(b), and 266(2).

5Under article 15(1) of the Portuguese Constitution, aliens residing in Portugal also benefit from the constitutional provisions on equality and non-discrimination.

6See, e. g., Caupers, 1985, 175. This does not mean that in specific contexts the principle of equality may not be regarded as a true fundamental right to equal treatment: see Queiroz, 2002, 107.

7The Portuguese version reads: ‘Os preceitos constitucionais respeitantes aos direitos, liberdades e garantias são directamente aplicáveis e vinculam as entidades públicas e privadas’.

8Discussing how the direct applicability of the Constitution’s clause on equality and non-discrimination is to be construed, see Prata, 1982, 91-142,Caupers, 1985, 158-179, Dray, 1999, 155-175, 175-199, Canotilho, 2002, 1269-1279.

(3)

379

odious

9

. Furthermore, sexual orientation discrimination is a form of

discrimination for which the wording of article 26(1) seems to demand that a legal remedy be provided for

10

.

Secondly, Portugal is party to a number of international treaties which also contain provisions on equality, the most relevant of which (the European Convention on Human Rights) has already been interpreted by the European Court of Human Rights as prohibiting at least some forms of discrimination based on sexual orientation

11

. Portugal is under an obligation to follow this jurisprudence according to article 8(2) of the Constitution

12

.

Thirdly, in 2001 the Portuguese Parliament (hereinafter, Parliament) passed a bill on common-law couples (uniões de facto, de facto partnerships)

13

, which applies both to opposite-sex and same-sex common-law partners. During the debates that preceded the passage of the bill, several Members of Parliament based the new legislation on equality concerns. This seems to indicate that Portuguese society is now (more) willing to accept that gays, lesbians and bisexuals deserve and should receive equal treatment and respect under the law.

It is not certain at this point, however, that Portuguese courts will be inclined to read sexual orientation into article 13 of the Constitution and, in that case, it is also not clear how they will interpret and apply the constitutional guarantee of equality and non-discrimination in the context of gay, lesbian and bisexual issues.

This discussion is bound to become obsolete, however, since on April 23, 2004, Parliament passed a bill amending the Portuguese Constitution, inter alia by adding, to article 13, an explicit reference to sexual orientation. The bill will now be sent to the President to be signed into law. It will probably be published and come into force during this summer.

14.1.2 General principles and concepts of equality

According to article 13(1) of the Constitution ‘[a]ll citizens have the same social rank and are equal before the law’

14

. There is, therefore, a constitutional

9Miranda, 2000, 239; Dray, 1999, 99-100.

10 This understanding was apparently shared by the majority of the Portuguese Members of Parliament in 1997, when they voted favourably a proposal put forward by the Green Party to specifically include sexual orientation in the wording of article 13. That proposal, however, did not receive enough votes to pass (a two third majority being needed for that effect). See the Diário da Assembleia da República (the

Portuguese Parliament’s Hansard), first series, no. 94, p. 3383 (speech by Mr. José Magalhães, a former Minister and also a reputed professor of constitutional law).

11 See the European Court of Human Rights’ judgement in the Salgueiro da Silva Mouta v. Portugal case, of 21 December 1999, appl. n. 33290/96, Reports of Judgements and Decisions, 1999-IX; S.L. v. Austria, 9 January 2003, appl. n. 45330/99; L. and V. v. Austria, 9 January 2003, appl. n. 39392/98 and 39829/98.

See also Fretté v. France, 26 February 2002, appl. n. 36515/97. It should be noted that Portugal has yet to ratify Protocol no. 12 to the Convention.

12 Art. 8(2) of the Constitution states: ‘rules provided for in international conventions that have been duly ratified or approved, shall apply in national law, following their official publication, so long as they remain internationally binding with respect to the Portuguese State’. On the precise meaning of this provision (although not referring specifically to the European Convention on Human Rights), see, v. g., Soares, 1988, 80. See, also, article 16(1) of the Portuguese Constitution (‘the fundamental rights contained [in the sense of enumerated] in this Constitution shall not exclude any other fundamental rights provided for in the laws or resulting from applicable rules of international law’).

13 Law no. 7/2001, of 11 May 2001. See also, infra, paragraph 14.3.3.

14 Article 13(1) of the Portuguese Constitution: ‘Todos os cidadãos têm a mesma dignidade social e são iguais perante a lei.'

(4)

380

mandate that no one ‘be privileged or favoured, or discriminated against, or deprived of any right or exempted from any duty, by reason of his or her

ancestry, sex, race, language, territory of origin, religion, political or ideological convictions, education, economic situation or social circumstances’ (article 13(2))

15

.

It should not be concluded from this provision, however, that the Constitution has embraced a purely formal notion of equality, as a simple ban on

inconsistencies in the treatment of similarly situated persons. There is, in fact, a strong commitment to a substantive notion of equality in the Constitution, one that, by acknowledging that there is an obvious difference between recognising a general right to equality and everyday social practices and conditions,

requires that equal opportunities be given to everyone and accepts –and even calls for– differences of treatment in order to tackle present and past

discrimination

16

.

This commitment can be discerned from a number of constitutional provisions, the most relevant of them probably being articles 9 and 81. Article 9(d)(h) which states that one of the ‘basic responsibilities of the State’ is the promotion of ‘the welfare and quality of life of the people, and actual

17

equality between

Portuguese [citizens] in their enjoyment of economic, social and cultural and environmental rights, through the transformation and modernisation of the economic and social structures’, and of ‘equality between men and women’.

This idea is further developed in article 81(a)(b), which states that ‘in economic and social matters the primary duties of the State are ‘to promote an increase in the social and economic well-being and quality of life of the people, in particular of those most underprivileged, in the context of a strategy of sustainable

development’ and ‘to promote social justice, ensuring equality of opportunity and undertaking the necessary corrections with respect to imbalances in the distribution of wealth and income, specifically by way of tax policy’.

The Constitutional Court has consistently held that the principle of equality is to be understood as a general prohibition of arbitrariness, therefore demanding that rational and reasonable justifications be offered as a basis for a certain difference in treatment (or the lack of it, when demanded by the situation at hand) as imposed by the legal order. Therefore, it requires not only that like be treated alike but also that what is different (from a substantive point of view) be treated differently. The Court also accepts that the principle of equality may even mandate that affirmative actions are taken to counteract past

discrimination

18

.

14.1.3 Division of legislative powers relating to discrimination in employment In Portugal, and for historical reasons, although Parliament is still the primary and most important legislative body, legislative power at the national level is generally shared between the Assembleia da República (the Portuguese

15 Article 13(2) of the Portuguese Constitution: ‘Ninguém pode ser privilegiado, beneficiado, prejudicado, privado de qualquer direito ou isento de qualquer dever em razão de ascendência, sexo, raça, língua, território de origem, religião, convicções políticas ou ideológicas, instrução, situação económica ou condição social’. But see addendum at the start of paragraph 14.1, supra.

16 On this point see Canotilho, 2002, 388-395; Miranda, 2000, 225-228, 238-241.

17 In the sense of ‘genuine’ (or ‘real’) equality.

18 See paragraph 14.3.3, infra, for some decisions of the Constitutional Court on this topic.

(5)

381

Parliament) and the Government. This means that, as stated in article 198(1)(a) of the Constitution, the Government can legislate – by issuing Decretos-Lei (that will be referred here as Legislative Decrees) – on any matters that do not fall within the exclusive powers of Parliament (as set out in articles 164 and 165 of the Constitution).

In matters falling under article 165 of the Constitution (which includes legislation on fundamental rights), however, Parliament can still delegate to the

Government the authority to legislate if it so decides (as has usually been the case in the last few years regarding some of the most important pieces of legislation).

Although Portugal is a unitary state (Article 6(1) of the Constitution), due to their specific characteristics, the archipelagos of Madeira and the Azores enjoy a certain degree of political and legislative autonomy. Even if fully subjected to national law (and, of course, Community law), the regional parliaments of Madeira and the Azores can legislate ‘in compliance with the fundamental principles of the general laws of the Republic, on such matters of specific interest to the regions (…) [which] are not within the exclusive powers’ of other state bodies (article 227(a) of the Constitution).

The notion of ‘matters of specific interest to the regions’ [‘matérias de interesse específico para as regiões’] raised, until 1997, some controversy, which led to the adoption of (the now) article 228 of the Constitution, specifying some of the matters that should be deemed of specific interest to the autonomous regions.

These include the ‘improvement of human resources and quality of life’ and

‘commercial and industrial development’ (article 228(a)(j)). This seems to indicate that the Autonomous Regions can pass legislation regarding equality and non-discrimination in the field of employment and professional occupation as long as there are some specific regional circumstances that justify the measures eventually taken

19

. As far as I know, none of the regional

Governments have announced any plans to adopt legislation in the field of equality and non-discrimination

.

14.1.4 Basic structure of employment law

On 1 December 2003, Law no. 99/2003, of 27 August 2003

20

came into effect, therefore effectively replacing the majority of statutes that previously regulated (private) employment law with a new and comprehensive Labour Code. The Code contains provisions regarding the employment contract and the

relationship between employer and employee (including provisions on equality and non-discrimination: see, infra, paragraph 14.2.1) and also on what is usually called ‘collective employment law’ (‘direito colectivo do trabalho’), dealing with trade unions and employers’ organisations, collective bargaining and agreements, strike, etc.

The Labour Code regards private employment only, public employment being a matter of administrative law. It should be noted that according to articles 5(a) and 6 of the enacting statute, the Labour Code’s provisions on equality and

19 The Portuguese Constitutional Court has accepted, e. g., that ‘regional specificities’ justified the definition of a supplement to the minimum wage: see Canotilho, 2002, 805-806.

20 All of the statutes referred to in the text can be found in the Diário da República (Portugal’s official gazette), first series (and, where applicable, first series-A), of the date by which they are identified.

(6)

382

non-discrimination are to be applied in the public sectors also, ‘until such time as special legislation is enacted’.

It is impossible to list all the relevant pieces of legislation dealing with public employment here. This task is made even more difficult because there are several bodies of civil servants, each subject to specific sets of rules and, eventually, to the general rules of the so-called ‘Função Pública’, which constitutes the main and general body of civil servants.

14.1.5 Provisions on sexual orientation discrimination in employment or occupation

Article 22(1) and (2) of the Labour Code state that ‘all workers have a right to equal opportunities and treatment regarding access to employment, to

professional training and promotion, and working conditions’ and that ‘[n]o

worker or job applicant shall be privileged, favoured, disadvantaged, or deprived of any right, or exempted from any duty, on grounds such as ancestry, age, sex [gender], sexual orientation, civil status, family situation, genetic heritage, reduced labour capability, disability, chronic illness, nationality, ethnic origin, religion, political or ideological convictions or trade union membership’

21

. Similarly, article 23(1) of the Labour Code states that ‘no employer can

discriminate, directly or indirectly, on grounds such as ancestry, age, sex [i. e., gender], sexual orientation, civil status, family situation, genetic heritage,

reduced labour capability, disability or chronic illness, nationality or ethnic origin, religion, political or ideological convictions or trade union membership’

22

.

14.1.6 Important case law precedents on sexual orientation discrimination in employment or occupation

As far as I know, there are no case law precedents dealing directly with instances of (actual or complained) sexual orientation discrimination in employment or occupation

23

.

14.1.7 Provisions on discrimination in employment or occupation that do not (yet) cover sexual orientation

a) Sex discrimination: Portugal has a general statute on sex discrimination since 1979

24

, which was mainly aimed at guaranteeing the equal treatment between

21 Art. 22(1) and (2) of the Labour Code:‘Todos os trabalhadores têm direito à igualdade de oportunidades e de tratamento no que se refere ao acesso ao emprego, à formação e promoção profissionais e às condições de trabalho’ and ‘Nenhum trabalhador ou candidato a emprego pode ser privilegiado, beneficiado, prejudicado, privado de qualquer direito ou isento de qualquer dever em razão,

nomeadamente, de ascendência, idade, sexo, orientação sexual, estado civil, situação familiar, património genético, capacidade de trabalho reduzida, deficiência, doença crónica, nacionalidade, origem étnica, religião, convicções políticas ou ideológicas e filiação sindical’.

22 Art. 23(1) of the Labour Code: ‘O empregador não pode praticar qualquer discriminação, directa ou indirecta, baseada, nomeadamente, na ascendência, idade, sexo, orientação sexual, estado civil, situação familiar, património genético, capacidade de trabalho reduzida, deficiência ou doença crónica,

nacionalidade, origem étnica, religião, convicções políticas ou ideológicas e filiação sindical’.

23 This, however, can be the result of poor reporting of judicial decisions, which covers only a small proportion of decisions handed down by courts of appeals and virtually none by lower courts, and not necessarily a sign of the total inexistence of cases dealing with sexual orientation discrimination in the labour courts’ dockets.

24 Legislative Decree no. 392/79, of 20 September 1979, as corrected by a declaration published in the Diário da República, first series, of 24 December 1979, and amended by the Legislative Decree no.

(7)

383

women and men in the field of employment and professional occupation

25

. The statute also provided for the creation of a Commission for Equality in

Employment and at the Workplace (Comissão para a Igualdade no Trabalho e no Emprego)

26

, whose main tasks were (and are) to help the Government in the fight against sex discrimination in general, to issue non-binding opinions on matters related to the discrimination of women in the field of employment and professional occupation (whenever requested to do so), and to make

recommendations as to the necessary legal reforms to be undertaken in the area of sex discrimination

27

.

In 1997, Parliament passed a statute on the right to equal treatment in the fields of work and employment dealing with indirect discriminatory practices

28

, and in 2001, a statute was passed with the aim of reinforcing the mechanisms to verify and prosecute discriminatory practices on the ground of sex

29

. Under this law, the Labour Inspection Service now has explicit competence to prevent, verify and punish direct and indirect sex discriminatory practices. At the same time the opinions adopted by the Commission for Equality in Employment and at the Workplace concluding that a certain employment practice is or could be

deemed discriminatory are now automatically sent to the Labour Inspection Service. The Service is then required to carry out an investigation to determine if an infraction has in fact occurred, and to take all the necessary measures to deal with it.

All these statutes will be replaced by the provisions on equality and non- discrimination contained in the Labour Code when the necessary regulations (expected to be passed soon by Parliament) come into force (see also, infra, paragraph 14.2.1).

b) Race: In 1999 Parliament passed a law

30

prohibiting discrimination based on race, colour of skin, nationality or ethnic origin, with the aim of preventing and prohibiting racial discrimination in all its forms and to establish sanctions for the perpetration of discriminatory acts on the grounds of race.

The statute applies to any kind of discriminatory practice or action, including those that occur in the field of employment and professional occupation. It also applies to the provision of goods and services, exercise of economic activities, sale or rental of property, access to places open to the public, access to health care, and education.

Article 5 of this statute established a Commission for Equality and Against Racial Discrimination (Comissão para a Igualdade e contra a Discriminação Racial) to monitor the enforcement of the statute.

426/88, of 18 November 1988 (concerning the application of the principle of equal treatment between men and women in the civil service. Its provisions are similar to the provisions set forth in Legislative Decree no. 392/79).

25 See Legislative Decree 392/79, article 1(1). The provisions of this statute are also applicable, with the necessary changes, to any discriminatory practices directed against men (article 1(2)).

26 The Commission website can be found at the address: www.cite.gov.pt/default.htm. Some of the decisions handed down by the Commission may be found at www.cite.gov.pt/cite/Pareceres.htm.

27 See Legislative Decree no 392/79, article 15(1).

28 Law no. 105/97 of 13 September 1997, amended by Law no. 116/99 of 11 August 1999.

29 Law no. 9/2001 of 21 May 2001.

30 Law no. 134/99 of 28 August 1999. The provisions necessary for the enforcement of this statute were enacted by the Legislative Decree no. 111/2000 of 4 July 2000.

(8)

384

c) Religion: The law on the Freedom of Religion (Lei da Liberdade Religiosa)

31

, prohibits religious discrimination, either by the State or by private citizens (Article 2(1)(2)). Also, article 14 of this statute contains a number of provisions regarding the observance of holidays imposed by religions, in order to reconcile religious freedom and the needs of economic and social life.

d) Disability: The Constitution specifically protects the rights of people with disabilities

32

, and a statute was enacted in 1989 in order to provide for the prevention, rehabilitation and social and professional integration of the

disabled

33

. This statute aims at promoting and ensuring the rights proclaimed by the Constitution in the fields of the prevention, treatment, rehabilitation and promotion of equal opportunities for people with disabilities (article 1), and according to its article 4(6), rehabilitation of people with disabilities shall respect the principle of equal opportunities, which means that all forms of discrimination with regard to disability shall be eliminated and that measures should be taken in order to transform the physical environment, and to make welfare and health services, educational facilities, the workplace, and cultural and social life in general, accessible to all.

14.1.8 Provisions on sexual orientation discrimination in other fields than employment and occupation

As far as I know, there are no provisions specifically concerning sexual orientation discrimination, or that were interpreted as providing specific protection against sexual orientation discrimination, outside the field of employment and professional occupation in Portugal.

14.1.9 Other aspects of the legal background

Other Portuguese statutes contain some provisions concerning discrimination, although none of them explicitly apply to sexual orientation discrimination and, as far as I know, have never been construed as applying to sexual orientation discrimination. Those statutes are not, however, specifically concerned with the field of employment and professional occupation, although in some cases they can impact upon it.

It is worth mentioning in this regard:

the Penal code, which contains provisions on the crimes of genocide, incitement to genocide and condoning of the practice of genocide, and the crimes of racial or religious discrimination, defamation on grounds of religion, and disturbance of an act of worship

34

;

the law that prohibits fascist and/or racist political organisations

35

, which are those that, among other things, advocate the use of violence as a form of political struggle, colonialism or racism;

31 Law no. 16/2001 of 22 June 2001.

32 See article 71(1)(2) of the Constitution.

33 Law no. 9/89 of 2 May 1989.

34 See articles 239(1)(2)(3), 251 and 252 of the Portuguese Penal Code.

35 Law no. 64/78 of 6 October 1978.

(9)

385

the Journalists’ Act 1999

36

, which states that one of the fundamental duties of journalists is not to treat persons in a discriminatory manner, especially on the grounds of colour, race, religion, nationality or sex (article 14(e))

37

;

the Advertising Code

38

, which prohibits, among other things, advertisements which are discriminatory on the grounds of race, language, territory of origin, religion or sex (article 7(d));

article 35 of the Constitution, that prohibits the storage and dissemination of information concerning a person's ideological or political convictions, party or trade union affiliations, religious beliefs, private life or ethnic origin without his or her consent

39.

14.2 The prohibition of discrimination required by the Directive Addendum

Bill 109/IX, containting supplementary provisions to the Labour Code, was published as Law no. 35/2004, on 29 July 2004 (entry into force on 29 August 2004, i.e. 30 days after publication (article 3 of Law no. 35/2004))

40

.

14.2.1 Instrument(s) used to implement the Directive

The Portuguese Government has opted to implement Directive 2000/78/EC

41

(together with a considerable number of other EC directives) through the enactment of a new, comprehensive, Labour Code (Código do Trabalho)

42

, which came into force on 1 December 2003, and through the adoption of

subsequent supplementary provisions (see addendum at the start of paragraph 14.2)

43

.

36 Law no. 1/99 of 13 January 1999.

37 Similar provisions exist with regard to radio (Law no. 4/2001, of 23 February 2001: article 47(1)(d)) and television (Law no. 32/2003, of 22 August 2003: articles 24(1), prohibiting the broadcasting of programs that, among others, do not respect the dignity of the human person and fundamental rights and that incite to hatred, racism and xenophobia, and 47(1) and (2)(a), as regards the so-called public service channels).

38 Legislative Decree no. 330/90, of 23 October 1990, with several subsequent amendments, the most important of which introduced by the Legislative Decree no. 275/98 of 9 September 1998.

39 Law no. 67/98 of 26 October 1998 (on the protection of personal data), also prohibits the treatment by automated and non-automated means, of personal data concerning -besides those characteristics listed in the Constitution- sexual life and genetic data.

40 The text of the Law no. 35/2004 can be read at

http://dre.pt/gratis/diplomas.asp?v01=Lei&v02=35%2F2004&submit=Pesquisar.

41 See articles 2(p) and 21(2)(c)(h) of Law no. 99/2003.

42 The Labour Code was enacted by Law no. 99/2003, of 27 August 2003, which was published in the Diário da República, 1st series-A, no. 197, of 27 August 2003. The final text of the Code can be found on the Ministry of Welfare and Employment’s website at:

www.msst.gov.pt/index.php?corpo=noticias&noticias=ver&id=301. As is usual in Portugal, Law no.

99/2003, is an independent statute, containing, as an appendix, the text of the Labour Code itself. The text will contain, therefore, references both to provisions contained in the enacting statute (i. e. Law no.

99/2003) and in the Code.

43 See addendum at the start of paragraph 14.2. The Government made its bill for the regulations available in the beginning of 2004. The Bill was passed on 20 May 2004, and is currently awaiting the signature of the President so that it can come into force. The full text of the bill (Government’s Bill [Proposta de Lei] no.

109/IX) can be found on the Ministry of Welfare and Employment’s website, through the link mentioned in the previous footnote. It can also be found on the Parliament’s website at the address:

www3.parlamento.pt/plc/Iniciativa.aspx?ID_Ini=20083.

(10)

386

14.2.2 Concept of sexual orientation (art. 1 Directive)

The Labour Code does not provide any definition of sexual orientation. It is also to be noted that there is no debate, in Portugal, as to the concept of sexual orientation. Therefore, the expression ‘sexual orientation’ will probably be interpreted, according to its common meaning, as encompassing only those people with a heterosexual, homosexual or bisexual orientation.

14.2.3 Direct discrimination (art. 2(2)(a) Directive)

Article 23(1) of the Labour Code now states that ‘no employer can discriminate, directly or indirectly, on grounds such as ancestry, age, sex [i. e. gender], sexual orientation, civil status, family situation, genetic heritage, reduced labour capacity, disability or chronic illness, nationality or ethnic origin, religion, political or ideological convictions or trade union membership’

44

.

The Labour Code gives no guidance as to what constitutes, or should be considered as constituting, direct or indirect discrimination. The supplementary provisions to the Labour Code

45

, however, will clarify this matter: according to Article 32(2)(a) and (b) of these regulations there will be ‘direct discrimination:

whenever, on one of the grounds referred to [in Article 23(1) of the Labour Code], a person is treated less favourably than another is, has been or will be treated in a comparable situation’, and ‘indirect discrimination: whenever an apparently neutral provision, criterion or practice would put persons having one of the characteristics referred to [in Article 23(1) of the Labour Code] at a

particular disadvantage compared with other persons unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary’

46

.

The definition of direct discrimination seems to differ slightly from the one contained in the Directive. Under the Directive, as I read it, a finding of direct discrimination should be made if, from the facts available, it may be concluded that the person or persons serving as comparators would be treated differently.

The definition contained in the supplementary provisions to the Labour Code

47

on the other hand seems to require that such a difference of treatment indeed occurs in the future for such a finding to be made. At this point it is impossible to anticipate if this apparent (in my view real) difference of wording is going to influence the way courts will interpret the definition of direct discrimination.

44 Art. 23(1) of the Labour Code: ‘O empregador não pode praticar qualquer discriminação, directa ou indirecta, baseada, nomeadamente, na ascendência, idade, sexo, orientação sexual, estado civil, situação familiar, património genético, capacidade de trabalho reduzida, deficiência ou doença crónica,

nacionalidade, origem étnica, religião, convicções políticas ou ideológicas e filiação sindical’.

45 See addendum at the start of paragraph 14.2.

46 Article 32(1)(a) and (b) of the supplementary provisions to the Labour Code: ‘Discriminação directa:

sempre que, em razão de um dos factores indicados no referido preceito legal, uma pessoa seja sujeita a tratamento menos favorável do que aquele que é, tenha sido ou venha a ser dado a outra pessoa em posição comparável; ‘Discriminação indirecta: sempre que uma disposição, critério ou prática aparentemente neutro seja susceptível de colocar pessoas que se incluam num dos factores

característicos indicados no referido preceito legal numa posição de desvantagem comparativamente com outras, a não ser que essa disposição, critério ou prática seja objectivamente justificado por um fim legítimo e que os meios para o alcançar sejam adequados e necessários’.

47 See addendum at the start of paragraph 14.2.

(11)

387

14.2.4 Indirect discrimination (art. 2(2)(b) Directive) See previous paragraph.

14.2.5 Prohibition and concept of harassment (art. 2(3) Directive)

According to article 24(1) of the Labour Code, harassment of employees and job applicants is to be considered a form of discrimination. Article 24(2) defines harassment as: ‘… any kind of unwanted behaviour related to one of the

grounds referred to in section 1 of the previous article, occurring in the context of an application for a job or in the context of actual employment, occupation or professional training, which has the purpose or the effect of affecting a person’s dignity or of creating an intimidating, hostile, degrading, humiliating or disturbing environment’

48

. Article 24(3) stresses especially that ‘any unwanted verbal, non- verbal, or physical behaviour of a sexual nature, with the purpose or the effect mentioned in the previous section’, constitutes harassment.

The new Labour Code has introduced no modifications to article 164(2) of the Portuguese Penal Code

49

which, under the heading ‘sexual coercion’, punishes by way of a prison sentence of up to three years for ‘whoever, by abusing the authority in which he or she is vested with by reason of a hierarchical,

economical or labour bond, constrains another person, by means of an order or threat not falling under the scope of the previous section [i. e. where no violence or serious threat is used, or the perpetrator does not put the victim in a state of unconsciousness or in a situation where he or she has no possibility of resisting the perpetrator’s actions], to bear or to enter into vaginal, oral or anal sex, with the perpetrator or with a third person’

50

.

The concept of harassment entrenched in the Labour Code differs from the notion of harassment that can be found in article 2(3) of the Directive by

accepting that the purpose and effect of the harasser’s behaviour may either be violating the dignity of a person or creating an intimidating, hostile, degrading, humiliating or disturbing, working environment. In that sense, it is, I believe, more comprehensive, therefore giving employees a wider protection against harassment.

14.2.6 Instruction to discriminate (art. 2(4) Directive)

The Labour Code does not explicitly prohibit instructing a person to discriminate on any of the grounds of discrimination referred to in articles 22(2) and 23(1), although article 122(c) of the Code forbids the employer ‘to exert any pressure over an employee to make him or her to adversely influence his or her own working conditions or those of his or her co-workers’.

48 Art. 23(1) of the Labour Code: ‘Entende-se por assédio todo o comportamento indesejado relacionado com um dos factores indicados no n.º 1 do artigo anterior, praticado aquando do acesso ao emprego ou no próprio emprego, trabalho ou formação profissional, com o objectivo ou o efeito de afectar a dignidade da pessoa ou criar um ambiente intimidativo, hostil, degradante, humilhante ou desestabilizador’.

49 As amended by Law no. 65/98, of 2 September 1998.

50Art. 164(2) of the Portuguese Penal Code: ‘Quem, abusando de autoridade resultante de uma relação de dependência hierárquica, económica ou de trabalho, constranger outra pessoa, por meio de ordem ou ameaça não compreendida no número anterior, a sofrer ou a praticar cópula, coito anal ou coito oral, consigo ou com outrem, é punido com pena de prisão até 3 anos’.

(12)

388

The supplementary provisions to the Labour Code

51

, however, include a provision specifically stating that ‘an order or instruction with the purpose of disadvantaging any persons by reason of one of the grounds referred to in Article 23(1) of the Labour Code shall be deemed to constitute discrimination’

52

.

14.2.7 Material scope of applicability of the prohibition (art. 3 Directive) The Labour Code applies only to private employment contracts, making it

necessary to extend its material scope in the future in order to encompass other professional occupations and self-employment, or to enact special legislation implementing the principle of equal treatment and non-discrimination in this area.

It should be noted that according to articles 5(a) and 6 of the enacting statute, the Labour Code’s provisions on equality and non-discrimination are to be applied in the public sectors also, ‘until such time as special legislation is enacted’.

According to article 22(1) and (2) of the Labour Code, ‘all workers have the right to equal opportunity and treatment regarding access to employment,

professional training and promotions and working conditions’ and ‘[n]o worker or a job applicant shall be privileged, favoured or disadvantaged, or deprived of any right, or exempted from any duty, on grounds such as ancestry, age, sex, sexual orientation, civil status, family situation, genetic heritage, reduced labour capability, disability or chronic illness, nationality or ethnic origin, religion,

political or ideological convictions or trade union membership’

53

.

The regulations of the Labour Code further clarify the material scope of the provisions on equality and non-discrimination contained in the Labour Code.

According to article 30(1)(a) to (d) of the regulations, ‘the right to equal opportunities and treatment regarding access to employment, professional training and promotion, and working conditions, encompasses:

(a) the selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy;

(b) access to all types and to all levels of vocational guidance, vocational training, and retraining, including practical work experience;

(c) pay and other pecuniary payments, promotions in all hierarchical levels and the criteria used in the selection of employees to be dismissed;

(d) membership of, and involvement in, an organisation of workers or employers, or any organisation whose members carry on a particular profession, including the benefits provided for by it’

54

.

51 See addendum at the start of paragraph 14.2.

52 Article 32(3) of the supplementary provisions to the Labour Code: ‘Constitui discriminação uma ordem ou instrução que tenha a finalidade de prejudicar pessoas em razão de um factor referido no n.º 1 do artigo 23.º do Código do Trabalho’.

53 Art. 22(1) and (2) of the Labour Code: ‘Nenhum trabalhador ou candidato a emprego pode ser privilegiado, beneficiado, prejudicado, privado de qualquer direito ou isento de qualquer dever em razão, nomeadamente, de ascendência, idade, sexo, orientação sexual, estado civil, situação familiar, património genético, capacidade de trabalho reduzida, deficiência, doença crónica, nacionalidade, origem étnica, religião, convicções políticas ou ideológicas e filiação sindical’.

54 Article 33(1)(a) to (d) of the supplementary provisions to the Labour Code: ‘O direito à igualdade de oportunidades e de tratamento no que se refere ao acesso ao emprego, à formação e promoção

(13)

389

There is no specific mention, either in the Labour Code or in the supplementary provisions

55

, of self-employment or professional occupation, although an

allusion is made, in the last provision quoted, to ‘membership of, and involvement in, an organisation (…) whose members carry on a particular profession’. Only time will tell if this provision is going to be interpreted in a way that goes beyond the stated material scope of the Labour Code.

14.2.8 Personal scope of applicability: natural and legal persons whose actions are the object of the prohibition’.

Article 23(1) of the Labour Code bill forbids ‘employers’ from discriminating.

This seems to apply both to individual and legal persons (see also article 617 of the Code).

I do believe that the duty to respect the principle of equal treatment and non- discrimination applies also to managers and workers in general, given the specific duty that befalls on all workers to treat their co-workers with courtesy (urbanidade) and probity (probidade) according to article 121(1)(a) of the Labour Code

56

, and the general protection of the workers’ personal rights afforded by private law (see, e. g., articles 70 et seq. of the Civil Law Code).

Furthermore, article 396(3)(b), (c) and (i) specifically considers that a worker may be dismissed if he or she breaches his or her co-workers rights, repeatedly raises conflicts with his or her co-workers and if he or she perpetrates any crimes in the workplace against his or her co-workers.

As the Labour Code stands, I do not think that the employer’s clients can be brought under its scope of applicability.

14.3 What forms of conduct in the field of employment are prohibited as sexual orientation discrimination?

14.3.1 Discrimination on grounds of a person’s actual or assumed heterosexual, homosexual or bisexual preference or behaviour If the prohibition against sexual orientation discrimination is to mean anything it must be that the mere sexual preference of a person cannot provide a

justification for discrimination in the field of employment and professional occupation

57

.

profissionais e às condições de trabalho respeita: a) Aos critérios de selecção e as condições de contratação, em qualquer sector de actividade e a todos os níveis hierárquicos; b) Ao acesso a todos os tipos de orientação, formação e reconversão profissionais de qualquer nível, incluindo a aquisição de experiência prática; c) À retribuição e outras prestações patrimoniais, promoções a todos os níveis hierárquicos e aos critérios que servem de base para a selecção dos trabalhadores a despedir; d) À filiação ou participação em organizações de trabalhadores ou de empregadores, ou em qualquer outra organização cujos membros exercem uma determinada profissão, incluindo os benefícios por elas atribuídos’.

55 See addendum at the start of paragraph 14.2.

56 Article 121(1)(a) of the Labour Code: ‘Sem prejuízo de outras obrigações, o trabalhador deve: a) Respeitar e tratar com urbanidade e probidade o empregador, os superiores hierárquicos, os companheiros de trabalho e as demais pessoas que estejam ou entrem em relação com a empresa’.

57 Stating as much based on the need to protect the employees’ right to privacy, see Dray, 2001, vol. II, 76-78.

(14)

390

The prohibition will surely apply also to sexual contacts taking place outside the employer’s undertaking. Although Portuguese employment law has been

interpreted in the sense that it allows an employee to be dismissed for at least some reasons connected to his or her private life or behaviour outside the workplace, courts have consistently considered it illegal to dismiss an employee solely because he or she maintains an intimate relationship (including sexual intercourse) with a co-worker, if such a relationship has no consequences whatsoever for the employer’s undertaking

58

. This line of reasoning suggests that the worker’s intimate and/or sexual life, with no impact over his or her work, and whoever his or her partner is, will not be regarded as justification for

dismissal and, of course, for discrimination

59

.

It is not clear at this point if the anti-discrimination provisions of the Labour Code will be interpreted as covering discrimination flowing from the (wrongly) assumed sexual orientation of a worker. Articles 22(2) and 23(1) mention only

‘sexual orientation’ without any further clarification, which seems to mean that the idea that there should be a finding of discrimination if the challenged situation, practice or behaviour was due to sexual orientation, whatever the actual sexual orientation of the worker may, in fact, be (see also article 616 of the Code, expressly stating that non-intentional infractions are also punishable).

14.3.2 Discrimination on grounds of a person’s coming out with, or not hiding, his or her sexual orientation

Invisibility being one of the main problems (if not the most important problem) faced by gay, lesbian and bisexual employees in the workplace, sexual orientation discrimination will arise mainly when the worker comes out or somehow lets it be known that he or she is gay, lesbian or bisexual. Therefore, in order for the legal protection against sexual orientation discrimination to have any real impact, it needs to be construed as prohibiting at least discrimination following the worker’s coming out or his or her identification as gay, lesbian or bisexual.

Although Portuguese courts have never decided this question, I think that they would agree that the worker has a right to be free from discrimination when identifying him or herself as gay, lesbian or bisexual in his or her workplace. It should be noted that the Labour Code explicitly protects the workers’ freedom of expression (article 15 of the Code; see, also, article 37 of the Constitution) – even if conditioned to the normal functioning of the employer’s undertaking – and the ‘physical and moral integrity’ (integridade física e moral) of employers and employees.

If the employee’s coming out happens in a manner that may have negative repercussions on the functioning of the employer’s business, then it is more

58 See the judgements mentioned by Cruz, 1990, 63-68. See also Lourenço, 2001, 509-516, and Martinez, 2002, 854.

59 It should be noted that the Lisbon Court of Appeals has upheld a dismissal based on the fact that a worker had used his office computer to install a pornographic application that could have been seen by the employer’s clients. This decision, which has been harshly criticised (see, e. g., Amado, 1994, 109-116), rests on the consideration that the employee had used the employer’s property for private and

‘reprehensible’ ends; once again, it is the negative impact on the employer’s business that justified the dismissal (even if that impact was overly estimated), not facts taken from the employee’s private life.

(15)

391

likely that courts will accept as fair any kind of discriminatory treatment arising from such a situation.

This is, therefore, an area in which some further legislative guidance on the scope of the prohibition of sexual orientation discrimination in employment is needed.

14.3.3 Discrimination between same-sex partners and different-sex partners Although civil status (‘estado civil’) and family situation (‘situação familiar’) are among the prohibited grounds of discrimination referred to in articles 22(2) and 23(1) of the Labour Code, I do not believe that courts are prepared to accept that this may require that same-sex (unmarried) partners and different-sex married couples be treated equally, especially since Portuguese law specifically forbids marriages between two persons of the same sex, declaring such unions as being legally non existent (‘inexistentes’): see articles 1577 and 1628(e) of the Portuguese Civil Law Code.

Moreover, although the Constitutional Court decided, in a judgement handed down on 19 June 2002

60

, that to deny an unmarried partner

61

the right to sue for non-pecuniary damages arising from the wrongful death of his or her partner constituted a breach of article 36(1)

62

of the Constitution, it has also concluded, in a judgement delivered on 9 April 2003

63

, while not questioning its previous decision, that the differences between unmarried and married different-sex couples justified restricting the access of unmarried surviving partners to social security pensions

64

. This seems to indicate that the Constitutional Court (and therefore, other Portuguese courts) may not be inclined to consider, as a matter of constitutional and statutory law, a difference in treatment between married couples and unmarried same-sex couples as discrimination.

The Labour Code has no provisions specifically concerning discrimination between same-sex and different-sex (unmarried) partners, but I think that its provisions on equality and non-discrimination will eventually be interpreted as requiring that they actually be treated equally. This is so because although Law no. 7/2001, of 11 May 2001, on uniões de facto

65

, does not impose, explicitly, on public and/or private entities, a general duty to treat same-sex and different-

60 The judgement (acórdão) which has received the number 275/2002, was published in the Diário da República, second series, of 24 July 2002, 12896-12902). This decision can also be read (in Portuguese) on the website of the Portuguese Constitutional Court at:

www.tribunalconstitucional.pt/Acordaos/Acordaos02/201-300/27502.htm.

61 Although the case arose as a result of the death of one partner to a different-sex couple, it is my opinion that this decision, by its own reasoning, extends also to same-sex couples.

62 Article 36(1) of the Constitution protects the right to marry and found a family, which the Court read as implying that some protection should be given to families not founded on marriage. The Court equally accepted that the case could also be read as implying a violation of article 13 of the Constitution, but declined to decide it on such ground.

63 The judgement, which received the number 195/2003, was published in the Diário da República, second series, of 22 May 2003, 7797-7803). This decision can also be read (in Portuguese) at:

www.tribunalconstitucional.pt/acordaos/acordaos03/101-200/19503.htm.

64 To put it shortly, while surviving spouses are automatically entitled to a survival pension on the death of their spouses, unmarried surviving partners can only claim such pension if they prove that they are in need of it, and that they cannot obtain alimony from a list of persons mentioned in article 2009, sections

(a)(b)(c)(d), of the Civil Law Code.

65 Law no. 7/2001 recognises unmarried partners that live together as husband and wife for at least two years a certain number of rights and benefits. For a brief summary of the main features of this statute, see Euroletter no. 88 (May 2001), available at: www.steff.suite.dk/eurolet.htm.

(16)

392

sex partners equally, it also does not explicitly allow for distinctions between them to be drawn either

66

, thereby making any discrimination regarding same- sex partners very hard to justify objectively.

Specifically in the field of employment, the statute in question allows for

(different-sex and same-sex) partners that work for the same employer to take vacations together whenever that is feasible and to benefit from the legislation regarding leaves and absences that married different-sex couples already enjoy under Portuguese law.

It should be noted that Portugal has no legislation allowing same-sex couples to register their partnerships and enjoy rights similar to those flowing from

(heterosexual) marriage. On the other hand, the recognition of foreign

registered partnerships raises a number of questions that Portuguese courts have yet to consider, making it impossible to predict at this moment if they will be willing to recognise them even to a limited extent under Portuguese law

67

. Finally, it deserves to be mentioned that the Constitutional Court, invoking article 36(4) of the Constitution (that states that ‘children born outside of

marriage shall not be discriminated against on that ground …’), has invalidated a decision taken by the Supreme Court of Justice that considered inapplicable to a common-law couple a provision of the Portuguese Civil Law Code

regarding the disposition of the family’s home subsequently to a divorce

68

and the provisions of a statute regarding the placement of teachers that did not allow for the interests of children of unmarried teachers to be taken into account in their placement procedure, contrary to what happened in the case of married different-sex couples

69

.

Both decisions

70

rest on the idea that whenever the law allows or mandates children’s best interests to be considered in a decision to grant or not to grant a certain benefit or advantage, that has to encompass the children of both

married and unmarried couples. In my opinion this seems to indicate that benefits or advantages granted to the children of different-sex married couples (or those which directly target them) will also have to be recognised to children of unmarried same-sex (and different-sex) couples, all differences in treatment being, in this situations, discriminatory.

66 I would further argue that it does not allow for such distinctions to be made: see article 1(2) of the statute, that reads: ‘Nenhuma norma da presente lei prejudica a aplicação de qualquer outra disposição legal ou regulamentar em vigor tendente à protecção jurídica de uniões de facto ou de situações de economia comum’.

67 On this see Pais/Sousa, 1999, 693ff.

68 The Supreme Court of Justice’s decision was published in the Diário da República, first series, no. 58, of 10 March 1993. The Constitutional Court’s decision was published in the Diário da República, first series, no. 179, of 5 August 1997. According to article 1793(1) of the Portuguese Civil Code, the court, on granting a divorce, may lease to one of the spouses the family’s home, whether it was bought by both of the spouses or it belongs to the other spouse alone, having regard, among others, to the best interests of the couple’s children.

69 The judgment, which received the number 286/99, was published in 43 Acórdãos do Tribunal Constitucional [the Constitutional Court’s reports], 503ff, and can be read (in Portuguese) at:

www.tribunalconstitucional.pt/Acordaos/Acordaos99/201-300/28699.htm.

70 At least in the interpretation of the Constitutional Court itself, as explained in its decisions 275/2002 and 195/2003, already mentioned.

(17)

393

14.3.4 Discrimination on grounds of a person’s association with gay/lesbian/bisexual/heterosexual individuals, events or organisations

As already mentioned, the courts have repeatedly stated that it is illegal to dismiss an employee solely because he or she maintains an intimate (and/or sexual) relationship with a co-worker (as long as such a relationship has no consequences as to the functioning of the employer’s operations). This line of decisions suggests that an employee’s social life, with no impact over his or her work, will not be regarded as justification for discrimination and, therefore, that any discriminatory treatment based on a person's association with lesbians, gays, bisexuals or heterosexuals will not be tolerated under the equality and non-discrimination provisions of the Labour Code.

This, I believe, will also be true regarding the involvement of an employee in a gay, lesbian and bisexual movement, which will surely fall under the freedom of association and expression that is constitutionally guaranteed to everyone (at least if such involvement has no negative impact on the employer’s business).

Once again, some legislative guidance regarding this topic would be welcome.

14.3.5 Discrimination against groups, organisations, events or information of/for/on lesbians, gays or bisexuals

Since the Labour Code does not deal specifically with this subject

71

, it is impossible to predict how courts will apply the equality and non-discrimination provisions of the Code regarding any difference in the treatment of groups, organisations, events or information of/for/on lesbians, gays or bisexuals.

The answer to this question may come to rest on the way courts will construe, in the future, the guarantees enshrined in articles 37 and 46 of the Constitution (which protect the freedom of expression and thought and the freedom of association) and 14 of the Labour Code (which recognises the ‘freedom of expression and ... of thought and opinion’, so long the 'personality rights' (direitos de personalidade) of the employer and employees and the normal operation of the employer’s business are not jeopardised), and will balance them with the substantial liberty that an employer has to enjoy regarding decisions on the groups, organisations, events or information that are to be allowed in his or her undertaking.

14.3.6 Discrimination on grounds of a person’s refusal to answer, or answering inaccurately, a question about sexual orientation

Whereas most authors agree that a job applicant under the obligation to provide the prospective employer with all the information relevant to the assessment of his or her suitability for the position that he or she is applying for (or has applied for), or to his or her ability to perform his or her job, they also agree that this duty does not extend to information that has no relevance to that purpose

72

.

71 The Labour Code contains some provisions regarding the activity of trade unions inside an undertaking, giving them ample liberty to impart information and organise meetings (see articles 496, 497, 501, 502, 503, 504 and 505). I do not expect, given the specificity of trade unions, that these provisions will be interpreted in such a way as to cover other groups, organisations, information or events.

72 See Martinez, 2002, 398-400.

(18)

394

The Labour Code, to a certain extent, clarifies this matter since it sets forth the conditions under which the employer can demand personal information from the prospective employee or worker, or order him or her to subject to medical

testings (see articles 16, 17 and 19 of the Code).

According to article 16(1), both the employer and the employees should respect each other’s private life. Section (2) of this provision specifies that this

encompasses ‘both the access to, and the dissemination of, information regarding the intimate and personal sphere of both parties, including those aspects relating to family, intimate and sexual life, health condition and political and religious beliefs’.

Article 17(1) states that the employer cannot require the employee to disclose any information regarding his or her private life 'except when it is strictly necessary and relevant to assess the worker’s ability to perform the

employment contract', and the employee is provided with a written justification for such demand.

Therefore, and unless the information about a person’s sexual orientation is considered relevant in the context of a specific employment contract (and I cannot think of an example where that may, or should, be the case), it is my opinion that an inaccurate answer to a question about a person’s sexual

orientation will not be deemed a cause for dismissal or other disciplinary action or considered to constitute a justification for any kind of discriminatory

behaviour on the employer’s part

73

.

14.3.7 Discrimination on grounds of a person’s previous criminal record due to a conviction for a homosexual offence without heterosexual

equivalent

I do not believe that most differences in treatment motivated by a prior

conviction under article 175 of the Portuguese Penal Code (which is the only offence that specifically targets homosexual behaviour by setting, in practice, a higher age of consent for homosexual acts

74

), would be considered

discriminatory by Portuguese courts, since they seem to accept that the

provision in question is not, in itself, discriminatory. I also believe, however, that this practice would only be accepted if the conviction could be said to be

relevant to assess the suitability of a candidate to a job or to assess the ability of an employee to perform the job in question (as is the case, for instance, if it required the candidate or employee to deal with minors of his or her own sex).

It should be noted however that it is not usual in Portugal for a private employer to demand the criminal record of a job applicant prior to taking a decision to hire or not to hire him or her, that usually being a requisite for those wanting to enter the civil service (admission to civil service frequently being conditioned upon the inexistence of a prior criminal record or, more usually, to the inexistence of previous convictions for certain crimes which are deemed to show the unsuitability of the applicant to perform the job in question).

73 See Dray, 2001, vol. II, 77-78 (although stating that a person’s sexual orientation may be relevant when the employer is a religious organisation).

74 Article 175 of the Portuguese Penal Codes states that: ‘Quem, sendo maior, praticar actos

homossexuais de relevo com menor entre 14 e 16 anos, ou levar a que eles sejam por este praticados com outrem, é punido com pena de prisão até 2 anos ou com pena de multa até 240 dias’.

(19)

395

In my opinion, article 175 of the Portuguese Penal Code, to the extent to which it establishes a different age of consent for homosexual acts, is unconstitutional because it violates article 13 of the Constitution, and therefore any difference in treatment connected to a prior conviction under this provision should be seen as a discrimination as set forth by articles 22(2) and 23(1) of the Labour Code bill

75

.

14.3.8 Harassment

As already stated, any kind of unwanted behaviour related to one of the prohibited grounds of discrimination, occurring in the context of an application for a job or of actual employment, occupation or professional training, which has the purpose or the effect of affecting a person’s dignity or of creating an

intimidating, hostile, degrading, humiliating or disturbing environment is to be considered, under article 24 of the Labour Code, as harassment and, therefore, as impermissible.

This formulation is, I believe, broad enough to include unwelcome sexual advances, either by a person of the same or of opposite-sex

76

and the use of derogatory language or the expression of negative opinions about

homosexuality or about a gay, lesbian or bisexual person if the conduct in question meets the degree of seriousness required for a finding of harassment to be made.

Depending on the kind of words used and the way they are uttered, however, I do not believe that using derogatory language about homosexuality or about gay, lesbian or bisexual people will ordinarily be considered as some form of discriminatory treatment.

This is not to say that the general rules dealing with the workers’ behaviour in the workplace (including articles 121(1)(a) and 396(1)(3)(b)(c)(i), as mentioned above), and the rules regarding the protection of the workers and employees’

personality rights (articles 15 to 21 of the Labour Code and 70 et seq. of the Civil Law Code) would not apply in this case or in cases not amounting to harassment, therefore providing workers with some protection against unwelcome conduct based on their sexual orientation.

Revealing a person's sexual orientation against his or her will is a manifest violation of the person’s right to privacy, which is forbidden by article 80(1) of the Portuguese Civil Code. Therefore, I do not believe that it would also be considered also as an instance of sexual orientation discrimination, although such a finding may depend on the specific circumstances of the case.

75 This is even clearer now, after the decisions of the European Court of Human Rights in the cases L. and V. v. Austria and S.L. v. Austria (see supra, footnote 10).

76 For decisions upholding dismissals based on opposite-sex sexual harassment: see Parreira, 2002, 243, note 171.

Referenties

GERELATEERDE DOCUMENTEN

For example, in the Czech Republic, where the Labour Ministry keeps a record of all violations of the anti-discrimination provisions since the end of 2004, it appears that at least

The Directive’s important requirement of a shift in the burden of proof in discrimination cases (article 10), appears to have not been fully implemented in many countries

So a ninth conclusion of the book can be that the specific case law of the Euro- pean Court of Human Rights with respect to sexual orientation – and some good practices and

Notwithstanding Article 2(2), Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law,

Report on measures to combat discrimination, Directives 2000/43/EC and 2000/78/EC, European Network of Legal Experts in the Non-Discrimination Field (Utrecht/Brus- sels: Human

Sexual Orientation Discrimination in the European Union: National Laws and the Employment Equality Directive. Retrieved

The Group has been formally established in October 2002 in the context of the Community action programme to combat discrimination, in order to provide an independent analysis of

13: ‘(1) Without prejudice to the other provisions of this Treaty and within the limits of the powers conferred by it upon the Community, the Council, acting unanimously on a