Is The French Legal Approach To Sexual Harassment And Sexism In The Workplace So Different From Other Countries?

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In its 2023 annual report, the High Council for Equality between Men and Women (HCE) notes that, five years after the #MeToo movement, French society...
France Employment and HR
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In its 2023 annual report, the High Council for Equality between Men and Women (HCE) notes that, five years after the #MeToo movement, French society "remains very sexist in all aspects", with women continuing to be treated unequally compared to men. 93% of women consider that they are treated differently in at least one area of society (at work, in public, at school, etc.). Inequality is particularly felt in the professional field since, according to the report, only 20% of the French population consider that women and men are equal in this respect. The HCE report also reveals that "as many women as ever declare that they have personally experienced sexist situations" with 80% of women under the impression of being treated less well because of their gender compared to 37% of men. 41% of women report they have experienced these situations in the workplace.

The HCE report recommends making training against sexism compulsory for employers or increasing sanctions against companies that do not put in place an effective system to fight against sexism. It is the case that for a long time, the specific issue of sexual harassment was overshadowed by the protection given to victims of moral harassment in the workplace. particularly since French courts were very rarely concerned with complaints from victims of sexual harassment. But things have changed considerably, with sexual harassment and sexist behavior now being major concerns for companies, whose obligations to their employees in this area have greatly expanded over the years. French companies now fully appreciate the need to prevent and combat these situations. In this respect, France now has a complete legal arsenal in the fight against sexual harassment and sexism in the workplace which is not so different from those in force in other countries.

What does French law say about sexual harassment in the workplace?

Sexual harassment is prohibited by article L. 1153-1 of the French Labor Code which provides that "no employee shall be subject to either:

1° sexual harassment, consisting of repeated remarks or behavior with a sexual or sexist connotation which either undermines his/her dignity because of their degrading or humiliating nature, or creates an intimidating, hostile or offensive situation against him/her;

Sexual harassment consists of:

a) When an employee is subjected to such comments or behavior from several people, in a concerted manner or at the instigation of one of them, even though each of these people has not acted repeatedly; or

b) When an employee is subjected to such remarks or behavior, successively, coming from several people who, even when they are not acting in concert, know that these remarks or behavior characterize repetitive conduct;

or;

2° conduct which is treated as sexual harassment, consisting of any form of serious pressure, even if not repeated, that is applied with the actual or apparent aim of obtaining an act of a sexual nature, whether this is sought for the benefit of the perpetrator or for the benefit of a third party." French law accordingly distinguishes between two different types of sexual harassment: (i) unwanted and repeated comments or behavior with a sexual connotation that create an intimidating, offensive situation or (ii) serious pressure with the aim of obtaining an act of a sexual nature.

In the first category of sexual harassment ("unwanted comments or behavior"), the law does not require a minimum period to have passed between the acts or behavior complained of to establish repetition. The comments or behavior complained of must be unwanted. The absence of consent does not need to be explicit; it can be established by the silence of the victim, what he/she has told colleagues or from a request of a more senior employee to intervene. The comments may be obscene or comprise ribald jokes, remarks on the victim's physical appearance or clothing or behavior such as unsolicited gifts repeatedly delivered to the workplace, unwanted physical contact such as a hand on the shoulder or a strong hug or repeated requests for dates.

The second category ("conduct treated as sexual harassment") consists of an abuse of authority characterized by threats to a victim's working conditions or attempts to blackmail involving the victim's salary or promotions prospects or dismissal unless the victim agrees to perform sexual acts. A single event is enough, regardless of the actual intention of the perpetrator who may have no other aim than to simply humiliate the victim or to push him/her to resign.

Since 2018, sexual harassment also includes specific situations targeting on-line harassment where (i) acts are committed by several persons in a concerted manner, even if each these persons did not act repeatedly; (ii) acts are committed by several persons at the instigation of one of them; and (iii) even if they are not acting in concert acts are committed successively by several persons knowing that the comments or behavior will be repetition of similar comments or behavior.

How does sexual harassment differ from sexism?

Sexism is a term that appeared in the 1960s in parallel with the rise of feminism, but it was only introduced into the French Labor C in 2015 in article L. 1142-2-1 which defines it as follows: "No one should be subjected to sexist acts, defined as any act linked to a person's sex, having the purpose or effect of undermining their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment."

Sexism differs from sexual harassment as it is based on gender stereotypes and the social roles that society still persist in assigning to women and men such as complaining that too many women present in meetings results in a waste of time because "they are too talkative", or that man cannot participate in discussions whilst also taking notes because it is well known that "men can't do two things at the same time". Other examples of sexist behavior would include telling a pregnant woman that she was thought to be ambitious or that she should not consider taking a position involving a lot of pressure, or asking a woman to make coffee at a meeting because she does it so well.

From a legal point of view, the line between sexual harassment and sexism is not always easy to identify. However, in practice the point of distinction will often be the purpose of the perpetrator - whether that is to obtain an act of sexual nature in the case sexual harassment, or a wish to humiliate or offend in the case of sexism.

Is sexual harassment a criminal offence in France?

An offense of sexual harassment was introduced into French criminal law for the first time in 1992. At the time, the law was only concerned with limited situations, the primary objective being to penalize sexual harassers in the context of a hierarchical relationship at work. After successive reforms aimed at extending its application to a greater number of situations, the offense is now defined in article 222-33 of the Penal Code in terms that are very similar to those of the Labor Code. The perpetrator is punished by two years in prison and a fine of 30,000 euros, increased to three years in prison and a fine of 45,000 euros in certain circumstances.

However, unlike the labor law provision, proof of sexual harassment in criminal law requires that the harasser acted intentionally. Accordingly, even if the criminal judge dismisses the offense of sexual harassment in the absence of intentional element, the sexual harassment might nevertheless be recognized before the civil judge in an employment tribunal upon complaint of the victim employee.

How to identify a situation of sexual harassment?

In some cases, defining the point at which conduct in the context of a familiar relationship or attempts at seduction becomes sexual harassment is not always easy to determine. It is common for the harasser to explain his or her conduct as part of the "game of seduction" or ribald jokes with the aim of discounting or undermining the complaint of the victim. In these situations, it is important to remember that seduction implies mutual consent, while harassment results in the imposition of unwanted behavior on another who, in the workplace, is very often in a situation of legal subordination to the perpetrator.

An employee attempting to seduce a colleague can misinterpret his or her intentions without being guilty of sexual harassment, because the law has never prohibited conduct attempting to seduce, including in the workplace. On the other hand, engaging in conduct or making remarks with a sexual connotation, in a heavy and repeated way, does constitute harassment. Moreover, exerting pressure, even once, to compel an employee to perform a sexual act constitutes harassment.

French case law establishes that an employee will abuse his/her hierarchical power to obtain an act of a sexual nature amounting to sexual harassment at work even if the misconduct takes place away from the workplace or outside working hours. Similarly, sexual harassment at work can occur if an employee makes remarks of a sexual nature to female colleagues by sending text or social media messages, at social events held after working hours.

Is sexual harassment hard to prove?

Under French labor law, the employee victim is not required to provide direct proof of sexual harassment but only to set out the factual elements that are relevant to the complaint of such harassment such as statements from colleagues or witnesses, exchanges of emails or text messages, social media exchanges and if relevant, medical certificates, etc. If the employer disputes the allegations, it is up to the employer to prove that the evidence provided is not conclusive, and that the behavior complained of does not constitute sexual harassment. However, a higher standard of proof applies in criminal proceedings.

In practice, the victim employee may find it difficult to provide evidence because situations of sexual harassment are most often hidden from public view. It may also be very difficult for victims to solicit testimony from colleagues who still employed in the same company.

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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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