Every year, the Defender of Rights, an independent administrative authority aimed at combating discrimination and promoting equality, publishes its barometer on discrimination in employment. The latest report from December 2023 focused on employees affected by chronic illnesses and their experiences of discrimination in the workplace.

However, discrimination can take various forms, and it’s important to know what the law provides in this regard to avoid any form of discrimination. We will also explore the means of action.

1. Legal Foundations

The fight against workplace discrimination is governed by several legislative and regulatory texts. Among the most important are:

– The Charter of Fundamental Rights of the European Union: France is obliged to respect the principles set out in the Charter, which prohibits, in its Article 21, any form of discrimination based on sex, race, color, ethnic or social origin, religion, political opinions, or any other opinion, membership of a national minority, fortune, birth, disability, age, or sexual orientation.

– The French Constitution: the principle of equality is enshrined in Article 1 of the Constitution, which states that “France ensures the equality of all citizens before the law without distinction of origin, race, or religion. It respects all beliefs.”

– The labor code: Article L.1132-1 prohibits any unfavorable treatment of a person based on the following grounds:

•          Origin,

•          Sex,

•          Morals,

•          Sexual orientation,

•          Gender identity,

•          Age,

•          Family situation,

•          Pregnancy,

•          Genetic characteristics,

•          Particular vulnerability resulting from economic situation, apparent or known to the perpetrator,

•          Membership or non-membership, real or presumed, of an ethnic group, nation, or alleged race,

•          Political opinions,

•          Trade union or mutual activities,

•          Religious beliefs,

•          Physical appearance,

•          Family name,

•          Place of residence or bank domicile,

•          Health status, loss of autonomy, or disability,

•          Ability to express oneself in a language other than French.

– Article 1 of Law No. 2008-496 of May 27, 2008 makes the following distinction between direct and indirect discrimination:

“Direct discrimination is a situation in which, based on its membership or non-membership, real or supposed, to an ethnic group or race, its religion, its convictions, its age, its disability, its sexual orientation, or its sex, a person is treated less favorably than another in a comparable situation.

Indirect discrimination is a provision, a criterion, or a practice neutral in appearance but likely to result, for one of the reasons mentioned in the first paragraph, in a particular disadvantage for certain persons compared to others, unless this provision, this criterion, or this practice is objectively justified by a legitimate aim and the means to achieve this aim are necessary and appropriate.

Discrimination includes:

1° Any act related to one of the reasons mentioned in the first paragraph and any act with a sexual connotation, suffered by a person and having the purpose or effect of undermining its dignity or creating a hostile, degrading, humiliating, or offensive environment;

2° Enjoining anyone to adopt a behavior prohibited by Article 2.”

2. Some Examples of Discrimination Situations

The labor code considers various situations in which discrimination could take place.

These include:

– Hiring: this is the case where a person is excluded from a recruitment or appointment procedure or from access to an internship or training period in a company due to the various reasons listed in the labor code.

Care should therefore be taken in drafting the recruitment announcement, as well as in conducting the interview.

Indeed, regarding discrimination, it is up to the employee to present elements suggesting the existence of such discrimination, and the employer must justify objective elements unrelated to any discrimination.

– Notification of disciplinary sanction, dismissal: this is the case where an employee is sanctioned or dismissed outside of any fault or legal cases of incapacity, economic reason, or professional inadequacy.

– Difference in remuneration based on the previously listed reasons;

– Refusal of training or professional promotion based on the previously listed reasons;

  • Syndical discrimination: Article L.2141-5 of the labor code prohibits the employer from taking into account membership in a union or the exercise of union activity when deciding on recruitment, promotion, assignment of certain tasks, or sanctions.

This protection covers both the employee who joins a union and the employee holding a union mandate or engaging in union activity.

Thus, the absence of any career advancement or salary increase during the union mandate constitutes syndical discrimination (Court of Cassation, Social Chamber, November 24, 2021, No. 20-15871).

The Court of Cassation also ruled that simply designating an employee by their origin (“The Lebanese”) constituted discrimination, outside of any other objective differentiation from other employees (Court of Cassation, Social Chamber, September 20, 2003, No. 22-16130).

3. What Are the Remedies for Victims?

In the event of workplace discrimination, victims have several remedies to assert their rights:

– Report the situation to employee representatives or union delegates;

– Inform the Labor Inspectorate of the discriminatory measures suffered;

– Report to the Defender of Rights: the Defender of Rights is an independent authority responsible for defending the rights and freedoms of citizens. Victims of discrimination can refer to this institution, which can conduct investigations and make recommendations.

– File a complaint with the police or gendarmerie services;

– Refer to the Labor Court: victims have the option to take legal action before the Labor Court to obtain redress for the harm suffered. In the context of a procedure, it is strongly recommended to be accompanied by a lawyer who will guide the parties on the strategy to adopt and the best way to present the situation. Indeed, it is up to the employee to present elements suggesting the existence of discrimination. The employer must justify objective elements unrelated to any discrimination.

The action before the Labor Court aims to annul the decision based on one of the prohibited reasons listed in the labor code and to obtain compensation for the harm suffered.

The employee has a period of 5 years from the revelation of the discrimination to refer to the Labor Court for their requests. Beyond this 5-year period, it is no longer possible to act.

LBV AVOCATS law firm remains at your disposal to assist you in your efforts.