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Refusing a service for LGBT organization. The case of an employee of a printing house

June 2018: Refusing a service for LGBT organization. The case of an employee of a printing house

The employee of a printing house in Łódź – Adam J. who refused to print promotional material for LGBT Business Forum Foundation, was finally sentenced. The District Court in Łódź upheld the verdict of the court of the first instance (Regional Court in Łódź) who found the employee of the printing house guilty, based on the argument that “everyone has the right to equal treatment regardless of sexual orientation”. The final judgement was announced by the Supreme Court on 14 June 2018.

Circumstances of the case (see the chronology of the case)

The LGBT Business Forum Foundation sent to the printing house an email with a demand to print promotional material. The LGBT Business Forum Foundation received an email in response to this project sent by the employee of the printing house: „ I refuse to print a roll-up banner with the graphics I received. We are not contributing to the promotion of LGBT movement by our work."

In June 2016, the Regional Court in Łódź decided that the employee of the printing house had committed an offense in view of the art. 138 Ustawa z dnia 20 maja 1971 r. Kodeks wykroczeń [Code of Misdemeanour] „Anyone who professionally provides services, demands and charges for a payment higher than the law, or intentionally without a justified reason refuses the service to which he is obliged, is subject to a fine.” The employee was sentenced to a fine of 200 Polish Zloty (PLN) for refusing to provide printing service for the LGBT organization.

The case went to the District Court, which (Judgment of Sąd Okręgowy w Łodzi z 26 maja 2017 r., sygn. akt V Ka 557/17) again found the employee of the printing house guilty. In justification of the verdict, the district court clearly expressed that the motivation of the employee of the printing house was grounded on "negative perception of LGBT persons". The Court also pointed out that “the employee beliefs are no legal reason for refusing a service to organizations such as LGBT Foundation”. The judgment was final at this stage. The Minister of Justice joined the proceedings and filed a cassation appeal against the judgment of the District Court to the Supreme Court. The case is final (judgment of the Supreme Court of 14 June 2018).

The legal and sociological background of the case

The Polish legal system is founded, among others, on equal treatment. According to art. 32 para. 2 of the Constitution of the Republic of Poland "no one shall be discriminated against in political, social or economic life for any reason". This means that it is unlawful to discriminate access to goods and services according to personal qualities. The provisions of ustawa z dnia 3 grudnia 2010 r. o wdrożeniu niektórych przepisów Unii Europejskiej w zakresie równego traktowania [The "Equal Treatment Act"] lists personal characteristics such as gender, age, disability, religion, worldview, race, nationality, ethnicity, and sexual orientation. A refusal to provide a service because of suchcharacteristics of the customer is a deliberate offense, without a valid reason,. The service provider has no right to categorize or select customers on the basis of their personal characteristics, which has no effect on commercial relations.

The Office of the Ombudsman is affected by many complaints regarding the violation of the principle of equal treatment in access to services: the owner of a shoe store in Tarnobrzeg, who refused to serve a client in a wheelchair (Judgment of Sądu Rejonowego w Tarnobrzegu z 8 marca 2013 r., sygn. akt II W 13/13); the owner of a clothing store that forbade people with prams to enter (Judgment of Sądu Rejonowego dla Warszawy-Woli w Warszawie z 5 grudnia 2016 r., sygn. akt V W 4937/16); the owner of z club who refused entrance to a concert to a person in ae wheelchair (Judgment of Sądu Rejonowego Warszawa Śródmieście w Warszawie z 26 lutego 2018 r., sygn. akt XI W 5001/17). In two cases, the court resigned from imposing a penalty, in other cases it imposed fines from 20 to 500 zlotys.

Courts pointed out that the employee did not have the right to represent the printing house (he was not its owner). Therefore, the principle of freedom of contract did not allow him to interfere in the content of the legal contract which was concluded between the printing house and an LGBT volunteer - this was done through the website of the printing house, which includes the words "order now, free delivery". During the case, an employee of the printing house explained: "I am a Catholic, I respect all people, also homosexual people, but my conscience does not allow me to promote such behawior". Neither of the courts recognized that printing the advertisement would have violated the rules of any religion or worldview. The Supreme court also stressed that the service provider is obliged to provide services because he offers them to the public.

The District court pointed out that “religious order must be separated from legal order and law guarantees everyone the right to equal treatment”. In the opinion of the defender of the printing house employee, his refusal is directly protected by the religious freedom cited in article 53 para. 1 of the Constitution.

The employee of the printing house was strongly supported by the lawyers of the Ordo Iuris Institut. The defender of the employee highlighted that this case has a significant role for the whole legal system in Poland, and that the Supreme court must finally dealt with.

The lawyer of the LGBT Foundation stated that the verdict of the District court (which deemed guilty the employee of the printing house) is correct. The principle of equality is protected by the law and this verdict will help shape social respect for this principle. In the opinion of the lawyer of the LGBT Foundation, this case will provoke better protection for all minority groups.

The entire proceedings were monitored by representatives of number of non-governmental organizations: The Helsinki Foundation for Human Rights, The Polish Society for Antidiscrimination Law and Court Watch Polska, Campaign Against Homophobia.

The constitutionality of the art. 138 of the Code of misdemeanour

On the basis of this case, at the end of 2017, the Minster of Justice submitted an application to the Constitutional tribunal to examine incompatibility of art. 138 of Code of Misdemeanour with the constitutional principles of a democratic state of law (art. 2), freedom of conscience and religion (art. 53), as well as freedom of economic activity (art. 22). The basic function of art. 138 of the Code of misdemeanour is to protect against discrimination in the area of access to services.

The ombudsman, who joined the proceedings in this case, requested that the Constitutional tribunal should declare that art. 138 of the Code of misdemeanour is consistent with the Constitution. He also stated that the principle of freedom of conscience and religion is not the right model of control in this matter. The ombudsman argued that freedom of conscience and religion does not justify the refusal to provide a service because of the client’s personal qualities. It may sometimes justify the refusal to provide a service - but only if it directly expresses a particular religion or worldview. This could happen in situations in which a confession or belief would establish a moral obligation to refuse a service, and this would have to be a widely accepted form of practicing religion. For example, it would be reasonable to consider the refusal of a Seventh-day Adventist to provide a service on a Saturday.

28 June 2018