Answer ... In France, there is a general principle of non-discrimination. Pursuant to this principle, no one may be excluded from the recruiting process and no employee may be disadvantaged or dismissed due to one of the following criteria:

• origin;
• sex;
• moral standards;
• sexual orientation;
• marital status;
• gender reassignment;
• age;
• pregnancy/maternity;
• membership of a particular ethnic group, nation or race;
• political opinions;
• trade union activities;
• elected public office;
• religious beliefs;
• physical condition or disability (unless an occupational doctor has duly certified the person as unfit to work);
• place of residence;
• bank domiciliation; or
• French language ability.

In addition, no employee may be dismissed for exercising the right to strike.

Both direct discriminatory actions (when one person is treated less favourably than another in a comparable situation based on one of these criteria) and indirect discriminatory actions (any apparently neutral measure that has discriminatory effects) are prohibited.

Conversely, the general rule is that any ‘affirmative action’, consisting in the adoption of more favourable measures for some people who meet specific criteria, is prohibited. By way of exception, the Labour Code authorises affirmative action only if:

• it is laid down by law; and
• it is conducted in compliance with the law.

In other words, under French law, only a restrictive list of minority groups can benefit from affirmative action and only in specific conditions (eg, affirmative action for disabled people or women may be allowed under some conditions; but affirmative action based on origin, for instance, is forbidden).

Answer ... Article L1132-1 of the Labour Code lists the following classifications or groups that are entitled to protection against discrimination:

• origin;
• sex;
• moral standards;
• sexual orientation;
• marital status;
• gender reassignment;
• age;
• pregnancy/maternity;
• membership of a particular ethnic group, nation or race;
• political opinions;
• trade union activities;
• elected public office;
• religious beliefs;
• physical condition or disability (unless an occupational doctor has duly certified the person as unfit to work);
• place of residence;
• bank domiciliation; or
• French language ability.

However, this list is not restrictive or exclusive. Specific types of discrimination are also set out in the Labour Code, as follows:

• trade union discrimination;
• discrimination relating to the exercise of the right to strike;
• discrimination regarding compensation based on gender;
• discrimination resulting from sexual harassment; and
• discrimination based on pregnancy status.

Answer ... Aside from the rules mentioned in questions 4.1 and 4.2, there are no legal provisions laying down specific protection measures against discrimination in the workforce.

However, a general principle of non-discrimination applies to all employers and employees, as well as prospective employees, trainees and apprentices. As such, employers must ensure equal treatment for the workforce and ensure that they are neither discriminated against nor harassed.

In addition, pursuant to Article L4121-1 of the Labour Code, employers must take all necessary measures to ensure health and safety in the workplace. To this end, employers may undertake preventive actions such as training to avoid potential risks in the working environment (eg, discriminatory behaviour, harassment).

Employers must take actions in case of discriminatory behavior within the company. Thus, the harasser or the person guilty of discrimination can be subject to a disciplinary sanction by the employer.

Companies can also adopt codes of conduct or codes of ethics to help prevent prohibited discrimination and harassment.

Answer ... In case of discrimination, an individual who believes that he or she has suffered from discrimination can:

• bring a claim before the employment tribunal to seek damages (civil action) within five years of disclosure of the discrimination;
• establish a discrimination claim, in which case a specific two-part burden shifting rule of evidence applies. The burden is first on the employee to present a prima facie case of discrimination. If such a case is presented, the burden shifts to the employer to prove that it did not discriminate;
• bring a claim before the criminal authorities, which could lead to criminal sanctions; or
• refer the case to the Human Rights Defender, which is an independent institution that combats discrimination and promotes equality. The powers of the Human Rights Defender include:
• • stating an opinion on the merits of the complaint;
  • making recommendations;
  • requesting the implementation of necessary measures; and
  • facilitating an amicable resolution of the dispute.

Answer ... Potential remedies for prohibited discrimination include:

• the invalidation of any discriminatory measures;
• damages to compensate the prejudice suffered;
• criminal penalties of up to three years of prison and a fine of:
• • €45,000 in the case of discrimination regarding hiring, sanctions, termination or training; or
  • up to one year’s imprisonment and a fine of €3,750 in the case of harassment and infringement of equality provisions regarding women and men; and
• re-establishment of the employee’s rights and damages.

Conversely, pursuant to Article 226-10 of the Criminal Code, false claims of discrimination can entail criminal sanctions (ie, up to five years’ imprisonment and/or a fine of €45,000).

Answer ... The Labour Code sets out protection and remedies against sexual and moral harassment, as follows:

• No employee, trainee or job applicant can be sanctioned, subject to a direct or indirect discriminatory measure or dismissed for having been subject or having refused to be subject to acts of sexual harassment.
• Employees are protected against ‘moral harassment’, which is legally defined as repeated conduct towards an employee aimed at damaging his or her working conditions in a way which is likely to alter his or her rights, dignity or mental or physical health, or to compromise his or her professional future.
• Any employee who engages in or condones sexual or moral harassment will be liable to both disciplinary and criminal action.
• Employers are obliged to implement all necessary measures to ensure effective protection from, and prevention of, moral and sexual harassment. Reference must be made to the relevant legal provisions regarding sexual and moral harassment in the company’s internal regulations. Failure to do so may result in both criminal and civil actions.

Retaliation: Article L1132-3-3 of the Labour Code protects employees who give testimony or report on discrimination. Complaining employees cannot be sanctioned, terminated or discriminated against, directly or indirectly. The termination of any employment contract, or any measure or action disregarding these rules, is void.