EU court issues ruling on gay man suing Polish state TV for discrimination

The Court of Justice of the European Union (CJEU) has issued a ruling on a case in which a gay man accuses Polish state broadcaster TVP of ending its cooperation with him because he and his husband (pictured above) produced a video promoting tolerance of same-sex couples.

“Sexual orientation cannot be a reason to refuse to conclude a contract with a self-employed worker,” wrote the CJEU, citing an EU directive on equal treatment in employment and occupation.

The case will now pass back to a Polish court for a final ruling. But it is likely to have consequences for anti-discrimination rules in Poland with regard to both self-employed workers and sexual orientation, which is currently not covered by Polish equality legislation.

The man who brought the case, Jakub Kwieciński, had worked as a freelance audiovisual editor for TVP since 2010. In 2017, he was suddenly taken off duty and informed that the station was ending its cooperation with him – despite, he says, having been told a month earlier that it would continue.

TVP’s decision came just two days after Kwieciński and his husband, Dawid Mycek – who together run a popular YouTube channel – had published a music video titled “Love Us At Christmas” in which they highlighted homophobic rhetoric and called for tolerance of LGBT people.

“The coincidence of the timing, as well as the information we obtained from colleagues, allows us to believe that the reason for this decision was my orientation,” said Kwieciński at the time. He therefore decided to launch legal action against TVP for discrimination.

A Polish court then asked the CJEU to clarify whether an EU directive on equal treatment in employment was applicable to this case and whether it precludes Polish legislation that excludes self-employed workers from anti-discrimination protection if someone refuses to conclude or renew a contract due to their sexual orientation.

Poland’s equality rules do protect self-employed workers from discrimination based on sex, race, ethnicity or nationality but do not cover sexual orientation, notes news outlet OKO.press.

The Polish government argued before the European court that the EU directive should not apply to decisions to conclude or terminate contracts with self-employed workers. However, the CJEU rejected that argument and answered positively to both the Polish court’s questions.

“To accept that freedom of contract allows a refusal to contract with a person on the ground of that person’s sexual orientation would deprive [the] directive, and the prohibition of any discrimination based on that ground, of its practical effect,” wrote the ECJ.

Campaign Against Homophobia (KPH), a Polish NGO that has supported Kwieciński’s case, celebrated the ruling as a “groundbreaking” extension of anti-discrimination protection to LGBT people in Poland.

“Today, the CJEU sent a strong signal that denying someone employment on the grounds of sexual orientation cannot be justified by freedom of contract,” said Kwieciński’s lawyer, Paweł Knut. “The desire to discriminate against someone does not deserve to be protected by this freedom.”

Kwieciński himself said that he “welcomed this ruling” but added that “it is a pity we had to go abroad for such obvious statements”.

Having obtained answers to its questions from the CJEU, the Polish court will now proceed with Kwieciński’s case against TVP, issuing a judgement based on its interpretation of the EU directive.

Jakub Jaraczewski, a legal expert at Democracy Reporting International, notes that the CJEU’s ruling applies directly only to Kwieciński’s case. But he says it is also likely to have wider consequences, not only for LGBT rights in Poland but also for the rights of self-employed people more broadly.

“The wider effect is that we now have a clear elaboration by the CJEU that the directive covers self-employed persons,” Jaraczewski told Notes from Poland.

The new CJEU ruling is “one more chapter in the ongoing struggle to close the legal gaps between employment and self-employment”, he adds, noting that often “entire industries and groups of workers” in Poland, such as lawyers and doctors, are largely self-employed.

Kwieciński and Mycek have also been fighting a separate legal battle to have their marriage – which was concluded in Portugal – recognised in Poland, where same-sex unions have no legal status.

While LGBT people have long enjoyed fewer rights in Poland than in western European countries, recent years have also seen the ruling national-conservative Law and Justice (PiS) party, which came to power in 2015, launch a sustained anti-LGBT campaign.

State broadcaster TVP, which is a mouthpiece for the government, has supported that campaign, regularly airing anti-LGBT material.

Main image credit: press materials

Daniel Tilles

Daniel Tilles is editor-in-chief of Notes from Poland. He has written on Polish affairs for a wide range of publications, including Foreign Policy, POLITICO Europe, EUobserver and Dziennik Gazeta Prawna.