This decision of the French Constitutional Court, dated 4 May 2012, came as a bombshell, as it effectively removed the prohibition on sexual harassment from the French criminal code. This decision and more importantly its consequences were clearly unexpected as the decision leaves a legal vacuum in the criminal code, given its immediate effect.

The French Constitutional Court based its decision on the grounds that the provision of the French criminal code prohibiting sexual harassment was not clear nor precise enough. Over the years, the definition of sexual harassment included in the French criminal code has been significantly widened to prohibit increasing types of behaviour, rendering these provisions too vague. In the end, sexual harassment was merely defined as the act of harassing someone in order to obtain benefits of a sexual nature.

The main consequence of this decision is that as from the date of publication of the decision, no one can be convicted or punished on the ground of sexual harassment, as the offence no longer exists, and alleged offenders will be systematically discharged.

It should be noted that a specific provision of the French employment code also prohibits sexual harassment. Such offence under the French employment code is punished by a fine of up to €15,000, and by up to one year of imprisonment. This provision is not affected by the decision of the French Constitutional Court, but most HR specialists anticipate that the Constitutional Court would rule in a similar way if the question of its constitutionality was raised before it.

It is to be hoped that the new French legislature will quickly address this issue by an amendment to the statutory framework, as legislative bodies have recently been invited to do so by the head of the main HR directors union in France. On a related note, it would seem that the prohibition of moral harassment has also been challenged by a French court which is considering transmitting this issue to the Constitutional Court.

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