France: Age Discrimination

Last Updated: 10 September 2008
Article by Philippe Desprès

Created by the Law dated December 30, 2004, the HALDE (High Authority for the Fight against Discrimination and for Equality) is an independent statutory authority vested with broad powers in order to deal with all forms of discrimination.

The HALDE also strives to promote equal opportunities, especially regarding senior workers, which might lead to a change in French legislation.

Powers of the HALDE

The HALDE is competent to deal with all forms of discrimination, whether direct or indirect1, prohibited by law or by an international commitment ratified by France. It was created following Directive 2000-78 dated November 27, 2000, which establishes a general framework to ensure equal treatment of individuals in the European Union regardless notably of their age with respect to access to employment or occupation. French law also prohibits discrimination on the grounds of age (Article L.122-45 of the French Labor Code and Articles 225-1 and 225-2 of the French Penal Code).

Employees can submit their cases directly to the HALDE, which can moreover automatically submit cases to itself, when it considers these to be relevant. The HALDE will investigate the claims it receives by asking any person, company or public body for explanations, information or documents. It may also conduct onsite inspections and obtain evidence from any person whose testimony it deems necessary or helpful. If the HALDE concludes that a case of discrimination exists, this helps the victims to compile their case files and informs them of the appropriate procedure for said cases. The HALDE informs the State Prosecutor ("Procureur de la République") of any event brought to its knowledge and which appears to constitute an offence.

At the request of the parties, or at their own initiative, civil, criminal and administrative courts may request that the HALDE present observations regarding the instances of discrimination submitted to them. The HALDE itself may request to appear before these courts.

Where facts suggest discrimination committed by the employer, the HALDE can offer a criminal settlement agreement ("transaction pénale") to the employer in the form of a settlement fine of €3,000 for an individual and €15,000 for a company.

The HALDE's main decisions concerning age discrimination

Concerning recruitment in the private sector:

The HALDE considered that more than 40 job advertisements posted on the Internet mentioned an age limit (Decision n°2005-14 dated June 20, 2005) and therefore constituted discrimination based on the applicant's age. It also considered that a recruitment process based on "development potential" could give rise to indirect discrimination based on the applicant's age (Decision 2006-20 dated February 6, 2006). Furthermore, the HALDE recommended that a recruitment agency take the necessary steps to ensure that the "date of birth" field on an applicant registration form was no longer a mandatory field (Decision n°2006-53 dated March 27, 2006).

However, the HALDE recently considered that the reference to the terms "junior" or "senior" in a job advertisement does not, as such, constitute age discrimination as long as it (i) refers to the applicant's level of professional experience and duties and (ii) is justified with regard to the job application (Decision n°2007-306 dated November 26, 2007).

The HALDE also conducts communication and information campaigns designed to promote equality through proposals made by the President of the HALDE to Minister Brice Hortefeux on December 17, 2007 concerning the employment of senior workers.

French legislation relating to senior workers

The Accord National Interprofessionel (national multi-industry agreement) dated October 13, 2005 agreed upon between national trade unions and the "plan national d'action pour l'emploi des seniors" (national plan of action for the employment of senior workers) presented by Prime Minister Dominique de Villepin on June 6, 2006 aim to allow senior employees to keep working beyond retirement age and to facilitate the transition period between work and retirement.

The main measures of these texts include:

  • the creation of a CDD senior (a fixed-term employment contract reserved for job seekers over 57 years of age) for a maximum 18-month period, renewable once. It has been possible to enter into this contract since August 30, 2006;

  • the extended continuation of employment during retirement for low wages. Such a continuation will be allowed when the sum of the wages and the retirement pensions does not exceed 160% of minimum wage;

  • reduced recourse to early retirement ("cessations anticipées d'activité"), such as Allocations spéciales du Fonds national de l'emploi (ASFNE contract2). The Administration provided, in a DGEFP instruction dated December 19, 2007, that every ASFNE draft contract must first be submitted to the DGEFP ("Direction générale à l'emploi et à la formation professionnelle").

Moreover, pursuant to a law dated December 21, 2006, as from January 1, 2010, it will no longer be possible to pension off employees aged under 65.

Finally, the 2008 Social Security Finance Act provides for additional measures to support the employment of senior workers and thus limit pensioning-off:

  • the employer contributions rate has been increased for company pre-retirement schemes with effect from October 11, 2007 (24.15% to 50%);

  • the CSG rate (special contributions on employment) on pre-retirement benefits paid since October 11, 2007 has been increased (application of a 7.5% rate3);

  • the employer's contribution on retirement indemnities (on the employer's initiative) fixed at (i) 25% of the indemnities paid from October 11, 2007 to December 31, 2008 and (ii) 50% of the indemnities paid since January 1, 2009.

In 2008, the French government intends to pursue and strengthen the plan of action aforementioned and will notably discuss the following proposals:

  • the implementation of a bonus-malus system in order to encourage companies to hire senior employees;

  • the choice given to each employee to continue a professional activity without any age limit and benefit from a proportional retirement pension rise as from 65 years old.

Footnotes

1. Direct discrimination means the differential treatment based on a specific characteristic, and indirect discrimination means any provision, criterion or practice, which initially appears neutral, but is liable to adversely affect one or more individuals or trigger discrimination.

2. The ASFNE contract is a contract entered into between the State and a company that contemplates a redundancy, which allows senior workers affected by the redundancy plan to benefit from a pre-retirement scheme.

3. Pre-retirement benefits paid before October 11, 2007 remain subject to the previous applicable provisions: CSG payment exemption for individuals exempt from the payment of the habitation tax, application of a reduced rate of 3.8% for individuals eligible to pay the habitation tax, but who do not pay income tax, or of a rate of 6.6% in all other situations.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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