Komisja ds Równego Traktowania, holenderski organ ds równości w swojej opinii jasno stwierdziła, że działanie szkoły religijnej polegającej na niezatrudnieniu osoby homoseksualnej w charakterze nauczyciela stanowi dyskryminację bezpośrednią. Wyjątek dla tego typu podmiotów przewidziany przepisami holenderskiego prawa antydyskryminacyjnego, będący efektem implementacji przepisów Dyrektywy 2000/78/WE ustanawiającą ogólne warunki ramowe równego traktowania w zakresie zatrudnienia i pracy nie mają zastosowania w przypadku różnicowania sytuacji pracowniczej z uwagi na orientację seksualną pracownika.

Komentarz w j. angielskim autorstwa Tomasza Dudka   

Oordeel 2007-100 1), issued by the Dutch Commissie Gelijke Behandeling (Equal Treatment Commission, hereinafter ETC) is significant for the protection of sexual minorities in Poland especially because of its subject. It answers the question, which was widely commented a few months ago in Poland, whether or not a Catholic school (or other organization whose ethos is based on religion or belief) can refuse to employ openly gay or lesbian teacher.
In January 2007 representatives of a private Evangelical Secondary School in Amsterdam (defendant) gave a few interviews to the newspapers in which they stated that due to the principles of their school, openly homosexual person would not be employed by them. The manager of the school added that intimate, sexual relationship is reserved for a man and woman in a monogamous marriage. That is a bible-based view, which must be agreed by all teachers before they can be hired by the school, because their life would serve as a model for students.
On 6th March 2007 the Stichting Meldpunt Discriminatie Amsterdam (Amsterdam Anti-discrimination Bureau, hereinafter AADB) lodged a complaint against the school. AADB accused it of discrimination on the ground of sexual orientation at work.
ETC invoked the provisions of Equal Treatment Act (ETA)2, of which article 1 states, that discrimination on the ground of, inter alia, “heterosexual or homosexual orientation” is forbidden, and article 5 prohibits discrimination in employment.
Defendant stressed that homosexuality is not seen as a relevant criterion during the recruitment process, but it is inconsistent with school policy which requires teachers to spend time with students, consider the issues of faith with them and be an active part of a local parish.
ETC acknowledged that there are exceptions to the abovementioned provisions which can be found under article 5 par. 2.c of ETA, but nevertheless “requirements [of an educational establishment founded on religious or ideological principles – author] may not lead to discrimination on the sole grounds of […] heterosexual or homosexual orientation […].”
Stressing that, ETC decided to perform a test composed of 3 issues in order to determine if exception can be applied to this particular case. These were as follows:
a. the basis for the establishment, and consistency, of a policy to maintain the identity of the school,
b. the need of implementation of the distinguishing personnel policy,
c. the negative answer to the question if the personnel policy leads to discrimination on the sole ground of sexual orientation.
Only if each of those conditions had been met, the exception would have been justified.
ETC recognized both the right of the school to maintain its religious identity (a) and the need of distinguishing personnel policy (b), nonetheless the discrimination on the sole basis of sexual orientation (c) was considered by the ETC to be contrary to the prohibition laid down in the ETA.
This conclusions resulted in finding a breach of ETA as well as ordering the defendant “to formulate policy principles for the purpose of concrete situations and also to present to the ETC these policy principles or a proposal of how they can be applied in a concrete situation.”3
As one can see, such view is similar to the one expressed by commissioner Viviane Reding4, as a reaction to the statement made by Polish Government Plenipotentiary for Equal Treatment, Elżbieta Radziszewska, that “church-owned schools and colleges could refuse jobs to declared homosexual staffers, and sack those already employed, "in line with their [the church's institutions'] values and principles".5
To sum up, it should be noted that, under both the European Union (Directive 2000/78/EC) and national law (i.e. Polish Act on the Implementation of the Certain Provisions of the EU on the Equal Treatment – art. 8 § 1.2 -, Dutch Equal Treatment Act – art. 5 -), the discrimination on the ground of sexual orientation is forbidden in the field of employment, that is why an organization whose ethos is based on religion or belief can’t refuse to employ openly gay or lesbian teacher on the sole ground of their sexual orientation.