Main principles and definitions
Instructions to discriminate are explicitly considered as a form of discrimination. Victimisation is provided with the same level of judicial protection as other forms of discrimination, and is an element to be taken into consideration in the assessment of the amount of damages. Discrimination by association
For all grounds of discrimination, occupational requirements can justify an exception to the prohibition of discrimination within the limits of ‘proportionality and reasonableness’ along the lines of the relevant provisions of the Directives. However, this unfortunately cannot be said of the scope of application of Decree provisions on ‘work suitability tests.
Italy chose to use the possibility of maintaining ad hoc rules for organisations with a special ethos. Decree 216/2003 therefore provides that ‘Differences in treatment based on religion or belief and enacted within churches (enti religiosi) and other public or private organisations do not constitute discriminatory acts where, by reason of the nature of the particular occupational activity carried out by such entities or organisations or of the context in which they are carried out, such religion or belief constitutes a genuine, legitimate and justified occupational requirement’. A partial exemption from the obligation of non-discrimination for organisations with a specific ethos was developed by judges before the adoption of the Directive, while in terms of legislation the only provision on the point was a very limited one enacted in 1990 on so-called ‘organizzazioni di tendenza’, (i.e. organisations characterised by a certain ‘ideology’ in a broad sense, such as churches, political parties, and trade unions). In cases of unfair dismissal, the employees of these organisations are granted only the remedy of damages and not the right to reinstatement, otherwise available.
With arguments partly based on the existence of this limited rule and partly on constitutional grounds, judges and scholars (in a very intricate debate which cannot be described here in all its nuances) have admitted that religious organisations have discretionary power to hire or dismiss or otherwise discriminate which goes beyond the purely disciplinary aspect. This is, however, subject to important limits which are not mentioned in the broad Legislative Decree 216/2003. Discrimination is not permitted when the organisation operates on a profit-making basis, and an actual link between the activity of the individual worker and the ideology of the organisation is required. According to many scholars, the Legislative Decree gives to employers with an ethos based on religion and belief a power they did not have before the adoption of the Directive (see the pending infringement procedure Commission v. Italy, C-312/11).
With regard to religion, a problem exists for denominations (such as Islam) that have not signed an ‘agreement’ (intesa) with the State and thus do not enjoy automatic legal recognition of their specific needs (such as holidays and ritual obligations).
Neither the Decree transposing Directive 2000/78/EC nor the 2006 Disability Act mention reasonable accommodation for persons with disabilities.
The problem of multiple discrimination is not dealt with as such in Italian anti-discrimination legislation.