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Evidence in legal proceedings against companies for cases of discrimination based on sexual orientation

On April 11, the Inter-American Court of Human Rights notified its judgment in the Olivera Fuentes case against Peru. In this judgment, the Court analyzed the obligations of States in cases of discrimination based on sexual orientation committed by private entities. This month we will discuss this judgment in detail. In this blog we will comment on the conclusions of the Court on the evidence required in processes for discrimination based on sexual orientation.

Summary of the facts

Mr. Olivera Fuentes was with his partner in a supermarket cafeteria. Store personnel asked them to stop showing affection in public as this made other customers uncomfortable. Mr. Olivera Fuentes denounced discriminatory treatment by the supermarket to the Peruvian authorities. Mr. Olivera Fuentes exhausted all legal avenues, but his complaint was rejected for lack of evidence.

Evidence to prove discrimination

The Court concluded that the person who alleges discrimination by third parties (for example, in a commercial relationship between a consumer and a company) is not required to present compelling evidence. It is enough for the victim to submit a complaint and indicia that suggests the existence of differential and discriminatory treatment by the company. When indicia exists, the denounced company must demonstrate that «it did not make such a distinction or that, where appropriate, there was an objective and reasonable justification that supported this difference in treatment» (paragraph 109 of the Judgment).

The Court found that there were several indications in the case record before the Peruvian authorities that suggested that Mr. Olivera Fuentes and his partner had been discriminated against because of their sexual orientation. The Court considered the response of the company (defendant) in the legal process before the Peruvian authorities, as well as some letters provided by the company itself in which one of the clients indicated «I express my total rejection of the immoral exhibition of couples in public with an influx of people and children and even more so if they are homosexual […] since [the children] get confused and parents must demand that good practices be respected” (paragraph 113 of the Judgment).

The Court concluded that, by demanding compelling proof of the discrimination suffered by Mr. Olivera Fuentes and his partner, the Peruvian authorities failed to comply with their obligation to carry out the corresponding investigations in order to eliminate possible discriminatory practices and attitudes against the LGBTIQ community. This ruling will undoubtedly have important implications in our country for the protection of LGBTIQ+ people from all discrimination in the commercial sphere.

At CELIG we provide specialized services to the LGBTQI+ community. If you want more information or make an appointment with us, call us at 48-000248, whatsapp 506-8334-6441 or write to info@celigcr.com.

We are located in San José, Barrio Escalante.

M.Sc. Ana Isabel Sibaja Rojas

CELIG – Center for Equal Litigation