When considering reversing the burden of proof in discrimination cases, can statements made by someone not legally responsible for an organisation, but closely associated with it, be facts from which discrimination may be presumed? Yes.
If the burden is reversed, can a respondent rebut the presumption without producing evidence that would interfer with the right to privacy? Yes.
So found the CJEU in Accept v Consiliul National pentru Combaterea Discriminarii.
Accept, an organisation working for gay rights, complained about FC Steaua. They argued that the club refused to employ gay footballers.
Mr Becali, a prominent figure in FC Steaua, had said that he'd close the club before accepting a homosexual on the team. Mr Becali didn't have authority over recruitment, but did play an important management role and was associated with it publicly.
The CJEU concluded lack of legal authority didn't prevent his remarks being facts from which discrimination might be presumed, given his close association with the club.
The court also considered what evidence would be required to rebut the presumption. They concluded that it wouldn't be necessary to produce evidence, such as information about the sexual orientation of other players, that would interfere with the right to privacy.