Answer ... Pursuant to the French Labour Code, no one may be excluded from a recruitment procedure or from access to a traineeship or a period of on-the-job training, or punished, dismissed or subjected to any direct or indirect discriminatory measure – in particular as regards remuneration, incentives or distribution of shares, training, redeployment, assignment, qualification, classification, professional promotion, transfer or contract renewal – on the basis of criteria defined by law.
Therefore, employees, trainees and prospective employees are all protected against any kind of discrimination and sexual and moral harassment, including indecent working conditions, whether at the time of recruitment, during their employment or upon termination.
However, the principle of non-discrimination does not preclude differences in treatment where such differences meet an essential and determinant professional requirement, the objective is legitimate and the requirement is proportionate.
Several grounds of discrimination are specifically referred to in the law as giving rise to legitimate differences of treatment. These include age, economic vulnerability and place of residence and unfitness for work, as established by an occupational physician or the measures taken in favour of disabled persons.
Answer ... The law lists the following prohibited discriminations: origin, sex, morals, sexual orientation, gender identity, age, family status, pregnancy, genetic characteristics, particular vulnerability resulting from the economic situation of the person concerned, apparent or known to the author of the discrimination, actual or assumed affiliation with a specific ethnic group, nation or alleged race, political opinions, trade union or mutualist activities, religious convictions, physical appearance, family name, place of residence, bank domiciliation, health condition, loss of autonomy, disability and ability to express oneself in a language other than French.
There are also specific unlawful discrimination regimes, applicable to grounds such as:
- trade union discrimination;
- discrimination in strike action;
- discrimination resulting from acts of sexual harassment;
- discrimination between men and women in terms of remuneration; and
- discrimination based on pregnancy status.
Answer ... There are no legal rules laying down specific protection measures against discrimination in the workplace.
However, a general principle of non-discrimination applies to all employers and employees, as well as job candidates, trainees and apprentices. As such, employers must ensure equal treatment for all employees and ensure that they are neither discriminated against nor harassed.
In addition, employers are obliged to take all necessary measures to ensure health and safety in the workplace (Article L4121-1 of the French Labour Code), including a duty of prevention, and to this end may undertake preventive actions such as training to combat potential risks in the working environment (eg, discriminatory behaviour, harassment, violence at work). Therefore, in compliance with these obligations, employers must ensure the physical and psychological health of employees and sanction any discriminatory behaviour within the company.
Answer ... Employees who consider themselves to be victims of discrimination may refer to:
- the Defender of Rights, an independent administrative authority which is tasked with defending people whose rights are not respected and ensuring equality of access to rights for all; and
- employee representatives, as part of the alert procedure.
Specific provisions simplify civil legal action for employees who are victims of discrimination.
An action for compensation for damage resulting from discrimination must be brought before the employment tribunal within five years of the date of disclosure of the discrimination.
The burden of proof is on the employer if the employee can make a plausible case for discrimination.
A group action may also be brought in respect of discrimination by a representative employee trade union organisation, but is subject to a separate procedure.
The French Labour Code also protects employees who bring a legal action for discrimination. Thus, the dismissal of an employee following a legal action for discrimination – whether brought directly by the employee or on his or her behalf – is declared null and void if it is established that the dismissal has no valid cause, but in fact constitutes a measure taken by the employer as a result of the legal action that the employee has brought.
Answer ... In case of breach of equal treatment, the employee may make various requests, such as a change in classification, back pay and damages.
Any act which would directly or indirectly imply discrimination is null and void (in case of dismissal, the employee has a right to reinstatement), but also gives rise to damages (minimum six months in case of dismissal, if the employee is not reinstated), and may constitute a criminal offence (punishable by up to one year’s imprisonment and a fine of up to €15,000). Damages can be awarded to compensate for harm to the employee’s career and can include a payment in respect of lost wages which the employee would have earned going back three years.
Answer ... In general, the employer is obliged to take all necessary measures to ensure health and safety in the workplace (Article L4121-1 of the French Labour Code). Therefore, it is its responsibility to take all necessary measures to prevent acts of sexual or moral harassment and to punish the perpetrators of such acts.
The French Labour Code also imposes a number of obligations on the employer as part of this duty of prevention, such as a requirement to disseminate information within the company on texts relating to harassment, and to highlight the provisions of the French Labour Code on moral and sexual harassment in its internal rules and regulations.
In addition, employees who have suffered or refused to suffer sexual harassment, or who have reported acts of sexual harassment, may seek the annulment of any retaliatory measures taken against them.
Any act which would directly or indirectly imply harassment is null and void (in case of dismissal, the employee has a right to reinstatement), and also gives rise to damages (minimum six months in case of dismissal and if the employee is not reinstated), and may also constitute a criminal offence (punishable by up to one year’s imprisonment and a fine of up to €15,000). Damages can be awarded to compensate for harm to the employee’s career and can include a payment in respect of lost wages which the employee would have earned going back three years.