The complaint went through two instances of review by Indecopi, both of which deemed it unfounded, citing the lack of sufficient evidence of discriminatory treatment provided by Olivera. During their analysis, the administrative authorities disregarded the television report, considering it a “fabrication” instigated by the victim. In the first of these instances, Indecopi even held that there existed a “scientific consensus on the consequences of the exposure of children to homosexual behaviour,” which they believed justified the attitude of the customer in the supermarket cafeteria.
Once the administrative procedures concluded, Olivera took his complaint to the judiciary, eventually reaching the Peruvian Supreme Court in 2011. However, the outcome was unchanged: the petition was deemed unfounded due to the purported lack of sufficient evidence to support a discrimination claim. As was the case with Indecopi, the judiciary relied on the company’s arguments to justify the actions of the supermarket staff.
After exhausting domestic remedies, on 29 November 2011, Olivera filed a petition with the Inter-American Commission on Human Rights (“the IACHR”) claiming that Peru had violated the principle of non-discrimination (Article 1(1)) enshrined in the American Convention in relation to his rights to a fair trial (Article 8(1)), privacy (Article 11(2)), freedom of expression (Article 13(1)), equal protection (Article 24), and an effective remedy (Article 25(1)). Almost a decade later, the IACHR found the Peruvian State responsible for discriminating against Olivera based on his sexual orientation and, on 4 June 2021, referred the case to the Court.
The Court’s analysis in Olivera Fuentes addressed four significant issues: (i) access to justice in discrimination complaints, (ii) public displays of affection of LGBTIQ+ persons, (iii) the obligations of corporations under the principle of non-discrimination, and (iv) the impact of discrimination on mental health.
The Court decided to approach the case through the lens of the right to “access to justice” enshrined in Articles 8(1) and 25(1) of the American Convention to scrutinise the reasons given by the Peruvian authorities for zalo database dismissing Olivera’s claim. The Court recalled that, under the American Convention, States have a general duty to prevent human rights violations by non-state actors, including private companies. This obligation includes closely monitoring corporate conduct to ensure that businesses adhere to human rights standards.
In this context, the Court’s analysis focused on two crucial aspects: (i) the burden of proof placed on Olivera, and (ii) the use of negative stereotypes by Peruvian authorities.
Regarding the burden of proof, the Court held that if the alleged discrimination by private companies falls under the prohibitions of Article 1(1) of the American Convention, complainants need to prove “differential treatment,” which entails presenting only “indications” of discrimination. The Court emphasized that this standard of proof requires that complainants present evidence they are “materially capable of providing.” This is particularly significant in cases where an inherent imbalance exists between the parties involved, as in situations where a consumer is facing a corporation.