New ECHR case concerning employment discrimination against a gay man in Russia

The Third Section of the European Court of Human Rights has communicated the case of Denis Viktorovich Oleynik v Russia.

The case concerns discrimination that Mr Oleynik alleges he suffered when he was refused employment because of his sexual orientation. 

The facts

Mr Oleynik was looking for new employment and uploaded his curriculum vitae to various head-hunter websites.

On 6 July 2015, Mr Oleynik received an email from a private foundation providing support for educational programmes, “Captains”. Ms P, a person in charge of an educational project “Captains of Russia”, invited Mr Oleynik to participate in a Skype interview for a position as a training manager.

On 7 July 2015, Mr Oleynik and Ms P held a Skype job interview. After the interview, Ms P confirmed that the Captains foundation was willing to hire him. 

During further discussion, Ms P asked Mr Oleynik if he was gay, and specified that the Captains foundation “adheres to traditional views” and that it would not hire a homosexual person. 

When Mr Oleynik confirmed that he was gay, Ms P stopped the conversation. Mr Oleynik received an e-mail from Ms P confirming that he could not be employed by the Captains foundation. No explicit reasons were given for the refusal to employ the applicant.

Domestic proceedings 

Mr Oleynik brought a civil claim against the Captains foundation, claiming that he had been denied employment on a discriminatory ground. To support his complaint, he provided to the court copies, certified by a public notary, of his conversations with Ms P, together with a screenshot of the Captains foundation’s home webpage, where Ms P was listed as a person in charge of an educational project “Captains of Russia”. The respondent party submitted, without providing any evidence, that Ms P had never worked for the Captains foundation.

On 25 November 2015, the Nagatinskiy District Court of Moscow dismissed Mr Oleynik's claim on the grounds that no act infringing his rights could be established.

On 20 April 2016 the Moscow City Court dismissed Mr Oleynik's appeal, confirming the District Court judgment.

On 31 October 2016 the Moscow City Court dismissed Mr Oleynik's cassation appeal as no breach of substantial or procedural law had been established. The Supreme Court also stated that the lower courts’ proceedings were compliant with the law. 

Mr Oleynik's second cassation appeal was dismissed on 21 August 2017. 

Domestic law

Article 64 of the Russian Labour Code, which regulates labour contracts, does not explicitly prohibit discrimination on the grounds of sexual orientation but does cover "any other factors":

“Unjustified refusal to conclude a labour contract shall be prohibited.

All and any direct or indirect restrictions or granting of direct or indirect advantages at concluding a labour contract depending on the sex, race, skin colour, nationality, language, origin, property, social and official status, domicile (including availability or unavailability of registration at the place of residence or lodgment) as well as on any other factors not connected with professional qualities of employees shall not be permitted, except for the cases stipulated by the federal law.

It is not allowed to refuse to conclude a labour agreement with women because of their pregnancy or presence of children.

It is not allowed to refuse employees who were invited in written form from the previous working place, in conclusion of a labour agreement, for one month beginning from the day of their withdrawal from the previous working place.

The employer must inform a person who was refused in conclusion of a labour agreement about reasons of refusal in written form.

A refusal to conclude a labour agreement can be appealed to a court.”

Complaint to the Court

Mr Oleynik complains under Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to respect for private and family life) of the Convention that his denial of employment was of a discriminatory nature and that the domestic courts did not answer his arguments in this respect.

Questions to the Parties

The Court has asked the Parties the following questions:

1. Is Article 14 in conjunction with Article 8 applicable to Mr Oleynik's complaint about the alleged denial of employment on the grounds of his sexual orientation?

2. If so, has there been a violation of Article 14 in conjunction with Article 8? In particular, did the domestic courts offer effective protection against the alleged discrimination of Mr Oleynik by the employer company, on the ground of his sexual orientation?

3. Did the domestic courts’ failure to address Mr Oleynik's arguments and to assess his submissions, disclose a violation of Article 6 (right to a fair trial) of the Convention?