The principle of non-discrimination is a core aspect of French Labour law. The sources of discrimination law are diverse. The first is constituted of European law that has largely determined the French law of discrimination. The second comes from the French constitution. The principle of non-discrimination has constitutional value, by virtue of the Preamble to the Constitution of 1946 that prohibits discrimination with regard to criteria of sex, race, belief and trade union activity, and of the current Constitution dated 1958 that contains a provision according to which “the nation ensures equality before the law of all citizens, whatever their ethnic origin, race or religion” (article 2 of the French Constitution). The French Labour Code contains several directives on discrimination, including, specifically, a provision that lists all grounds of prohibited discrimination (article L.1132-1 and following).
Extent of Protection
According to the French Labour Code, it is forbidden to punish or dismiss employees, or exclude potential employees from the recruitment process (for a job, a training position or an internship), or cause them to endure direct or indirect discriminatory measures with respect to remuneration, incentive schemes, share distribution, training or redeployment programs, posting, qualification, classification, career development, mobility or contract renewal, on the basis of their nationality, ethnic or racial origin, gender, sexual orientation, morals, name, age, marital status, religious beliefs, political opinions, trade union activities, physical appearance, medical condition and/or disability.
An employee who alleges discrimination has a lighter burden of proof: the employee must invoke facts likely to demonstrate discrimination, while the employer has to demonstrate that the difference observed is justified by objective non-discriminatory elements.
Discrimination is a criminal offence punishable by (i) a maximum of three years’ imprisonment and a fine of EUR 45,000 for the employer’s legal representative (in most cases, the chief executive, depending on the type of company), (ii) a fine of up to EUR 225,000 for the employer (as a company).
Protections Against Harassment
In France, harassment is prohibited by national law and takes the form of both sexual and moral harassment.
Moral harassment is defined as repeated conduct which is designed to or which leads to a deterioration of the employee’s conditions of work liable to harm his rights and his dignity, to damage his physical or mental health or compromise his career prospects.
Sexual harassment as repeated statements or acts or pressure that is repeated or not of a sexual nature that violate a person’s dignity because of their humiliating or degrading content or because they generate an intimidating, hostile or offensive environment, as well as pressure with the perceived or real aim of obtaining sexual favours for a person’s own benefit or the benefit of a third party.
Sexual and moral harassment are both punishable by two years of imprisonment and a fine of EUR 30,000 (three years of imprisonment and a fine of EUR 45,000, where sexual harassment is committed by a hierarchical superior). In France, where harassment is perpetrated by an employee, both the employer and the employee are liable.
Employer’s Obligation to Provide Reasonable Accommodations
Under the current legislation, private companies and public offices with more than 20 employees must have workers with disabilities account for 6% of their total workforce. Employers are provided with three options to meet this target: (i) hiring disabled workers as employees, (ii) subcontracting workers from the sheltered sector, (iii) paying a contribution fee to AGEFIPH, which is an organisation dedicated to furthering professional inclusion of the disabled in the private sector.
Employers can initiate a non-judicial in-house inquiry if a victim of harassment brings to their attention, or if they suspect, an incident of discrimination, as they must guarantee a working environment free of such practices.
The right of alert of the employees’ representatives in case of violations of human rights and freedoms in the workplace entitles the representative to file an emergency petition for injunctive relief before the Labour court and applies to cases of discrimination.
Since 2004, a special body has been created that has an essential role in the fight against discrimination: the Defender of Rights. Any discrimination case, direct or indirect, prohibited by statute, law, or by an international convention to which France is a party, can be brought before the Defender of Rights. Its main task is to ensure the efficacy of the legal mechanisms prohibiting discrimination. Legal actions may also be brought before the Labour Court directly, by employees who allege discrimination.
French labour law does not recognise quotas, and the principle of non-discrimination bars employers from practicing affirmative action or instituting measures designed to favour diversity in the workplace.