In an attempt to put an end to perceived discrimination against immigrants, women, and the elderly, the French Parliament has adopted a controversial "Equal Opportunities Bill" proposed by the French Prime Minister Dominique de Villepin.1 As part of the new regime, an amendment to the Labor Code was approved on March 9, 2006, that mandates the anonymity of job applications for positions at companies with 50 or more employees in France. The amendment, adding a new paragraph to article L. 121-6 of the French Labor Code, reads as follows:
"In companies with 50 or more employees, the information considered in article L. 121-6 of the Labor Code and transferred by a job applicant must be examined in such conditions that respect anonymity of the applicant. The modalities of application of this article are subject to a decree which will be adopted by the Conseil d'Etat." (the highest French administrative court)
Under article L. 121-6 of the Labor Code, information relating to candidates that is being used in the recruitment process must be "necessary" and "directly related" to the position which the candidate is recruited.2 In this respect, the French Data Protection Authority3 (Commission nationale de l’informatique et des libertés – CNIL) issued guidance listing information that may not be collected and processed except for specific positions with specific requirements.4 The current amendment further tightens the collection and use of personal data in the course of recruitment processes.
As a result of the new amendment, job applicants may anonymously apply for positions at companies with at least 50 employees. Also, human resources departments and recruitment companies will be obligated to preserve the anonymity of candidates, and may be obliged to delete all information that potentially reveals a candidate’s identity from his/her application file, letters, curriculum vitae, etc. before forwarding the application to the relevant departments or clients.
The exact scope of the application of this amendment still needs to be defined by an administrative decree. Such decree is likely to prohibit the use of the name, address, sex, age, and nationality of the job applicant in the initial selection process. There will certainly be practical difficulties for recruitment professionals who will be faced with respecting the anonymity of candidates. Given the current controversy in France on the Bill5, the decree may well never be adopted which may leave the amendment to article L. 121-6 of the French Labor Code difficult to apply in practice.
The battle against the Bill in France continues as certain members of parliament have threatened to challenge the entire Bill in the French constitutional court (the Conseil constitutionnel 6) on the grounds of article 61 of the French Constitution of 19587. Should this occur, the promulgation of the law, and therefore its application, will rest on the constitutional court’s decision.
Interestingly, the very same policy goal, i.e., putting an end to the perceived discrimination against minorities such as immigrant workers, workers from ethnic minorities, women, and the elderly, has lead to different results in different countries. In the US, potential employers are obligated to collect applicant flow data (to collect and track information relating to gender and ethnicity). The French thinking is different. In France the view is that an anonymous and color-blind selection process would automatically result in more candidates from minorities being hired.
Footnotes:
1.
Loi pour l'égalité des chances, available (in French) athttp://www.assemblee-nationale.fr/12/ta/ta0548.asp.
2.
"The requested information, whichever form they may take, to a job applicant or to an employee may only be for the purpose of appreciating his ability to perform the job or to evaluate his professional skills. This information must be directly and necessary for the job offered or to evaluate the employee's professional skills. The applicant or the employee must answer to this in good faith."3.
http://www.cnil.fr/.4.
This information includes: date of entry into France, date of naturalization as a French citizen, modalities under which the data subject acquired French nationality, nationality of origin, social security numbers, details of the military status, former personal address, family and relatives of the data subject (name, surname, nationality, profession and name of the employer of the spouse, the parents, grandparents, siblings or children), the data subject’s state of health, size, weight, eyesight, whether landowner or tenant, charity participation, banking details, credit details.5.
The anonymous CV is particularly controversial among social unions in France and companies.6.
http://www.conseil-constitutionnel.fr/7.
According to Article 61 of the French Constitution, laws may be deferred to the Conseil consitutionnel before they are promulgated by the President of the Republic, the Prime Minister, the President of the National Assembly, the President of the Senate or by 60 senators or 60 deputies. The Conseil constitutionnel then has one month to issue its decision, or eight days if there is a state of emergency. In both cases, promulgation of the law will be suspended until the Conseil constitutionnel has reached a decision.Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.
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