France: Sexist Behaviour Can Justify a Dismissal Even if the Employer Has Not Taken Any Disciplinary Action in the Past

Under French law, there is a specific article in the French Labour Code which prohibits both sexual harassment and sexist behaviour (article L1153-1) and another article which specifically just prohibits sexist behaviour, i.e., gender-based stigmatizing comments or behaviour which is not of a sexual nature (article L1142-2-1). This is the first time the French Supreme Court ruled based on this second specific article.

In this case, the nature of the comments made by the employee who was dismissed were not contested. However, the employee argued that his dismissal was not justified because his employer had known about his behaviour and had never sanctioned him. The Court of Appeal had accepted this argument, but the French Supreme Court overruled it on the basis that the employer did not simply have the right to sanction the employee, which could be considered to have been waived, but a legal duty to act to prevent sexual harassment.

Key Action Points for Human Resources and In-House Counsel

Ensure you have complied with all your obligations with regards to raising employees’ awareness of sexual harassment and sexist behaviour and that managers are probably trained to identify and respond to such behaviour. Also remind managers that they must act in case of other types of employee misconduct (where they have a right to act rather than a duty to act) to avoid being unable to take sanctions in the future.