IBA

Paris, April 8, 2005

by: Patrick Thiébart, Partner

26, AVENUE KLÉBER 75116 PARIS

Téléphone : 33 (0) 1 45 02 79 00 – Télécopie : 33 (0) 1 45 02 79 01/02

e-mail : info@franklin-paris.com

www.franklin-paris.com

 Article 6 (1) of the Treaty on the European Union provides that “the Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms … principles which are common to the Member States”.  According to the Charter of Fundamental Rights of the E.U., “conscious of its spiritual and moral heritage, the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity, it is based on the principles of democracy and the rule of law”.

However, for many years, the E.U. Authorities were of the opinion that combating discrimination could only take place through the changing of attitudes.  This should be of no surprise as the main purpose of the European Economic Community (as it was then) was to secure free trade between the Member States.  At that time, there were no commonly agreed minimum standards within the E.U. concerning legal protection against discrimination.  The only substantive provision was Article 119 of the Treaty of Rome, which established the principle that men and women should receive equal pay for equal work.  This Article nevertheless had a real impact on the Member States after the European Court of Justice ruled in 1976 in Defrenne v. Sabena that its legal provisions were directly effective and so could be enforced by individuals before their national courts.

In the early 70's the U.K. was the only country that had an effective legislation concerning workplace discrimination on the grounds of race or ethnicity. 

This however began to change in the mid-70's with the adoption of three important directives, i.e. Directive 75/117 on equal pay, Directive 76/207 on equal treatment with regard to access to employment, vocational training, promotion, and working conditions, and Directive 79/7 on the progressive implementation of equal treatment with regard to statutory social security schemes.  Directive 76/207 was particularly important as it enabled women to bring litigation on an individual basis to challenge unlawful discrimination.

1997 was a major turning point not only because it was designed as the European Year against Racism but also because it was the year when the Member States agreed some important changes to the Treaty on the European Union in Amsterdam.  Article 13 of the E.U. Treaty was then amended to provide a legal base for Community action to combat discrimination on the grounds of racial or ethnic origin, religion or belief, disability, age and sexual orientation.  In addition, the power to combat sex discrimination was widened.

Making use of this legal basis, the European Union through its Council of Ministers has increasingly been turning its attention towards fundamental human rights and has adopted three main anti-discrimination Directives.

Before going into the details of the E.U. anti-discrimination regulation, it should be reminded that E.U. Directives are E.U. laws that Member States must comply with.  More particularly, a directive aims to reconciling the dual objectives of both securing the necessary uniformity of E.U. law and respecting the diversity of national traditions and structures.  Therefore, EU directives are not intended to take effect directly in Member States.  They just set out the result to be achieved by the Member States and it is up to each of them to pass national legislation under its own particular circumstances based on its history and traditions. Therefore, directives offer to the Member States some discretion during the implementation process, which is especially important in respect of discrimination against racial or ethnic minorities given the different ways it manifests itself between, and even within, Member States.

The current arsenal of anti-discrimination regulation in the EU is comprised of three directives which set “broad objectives to ensure that discrimination is prohibited and that the victims of discrimination enjoy a basic minimum entitlement to redress”. 

The core standard is therefore a minimum one only, and in no way attempts to create a uniform, European-wide standard.

At this date, the E.U. arsenal against discrimination is comprised of:

Ø      The Race Directive 2000/43 of June 29, 2000 which came into force on July 19, 2000.  This Directive has been heavily influenced by two U.K. pieces of regulation, i.e. the Sex Discrimination Act 1975 and the Race Relations Act 1976, which in turn draw on Title VII of the US Civil Rights Act of 1964.  This E.U. Directive provides a minimum standard of legal protection against discrimination on grounds of racial and ethnic origin (terms which are left undefined) both in working life as well as in other fields of social life (e.g. education, training, social security benefits, health care and access to and supply of goods and services available to the public).

Another salient characteristic of the Race Directive is the requirement for Member States to designate bodies for the promotion of racial equality, to promote equal treatment and to encourage dialogue with NGOs in the fight against racial discrimination.

The Race Directive had to be transposed by the Member States by July 19, 2003 and for the new Member States by their date of accession (given that this Directive forms part of the “acquis communautaire”).  However, not all Member States had implemented the Directive by the deadline of July 19, 2003.

Ø      The framework Directive 2000/78 of November 27, 2000 establishes a general framework for equal treatment only in working life and vocational training (i.e. in any form of education preparing for a profession, trade or employment).  This directive outlaws discrimination on grounds of religion or belief, disability, age, and sexual orientation.  For instance, the Directive requires employers to make reasonable accommodations for disabled persons, which led Germany, Finland and Austria to amend the equality clauses of their constitutions to include a specific reference to disability.

However, regrettably the Framework Directive does not provide for protection of pregnant workers and workers who have recently given birth.  Accommodations for members of (minority) religions, who could equally benefit from the right to take time off work, are not similarly provided for.

The framework Directive had to be implemented by the E.U. Member States by December 2, 2003 (with a possible later deadline until December 2006 for provisions dealing with specific topics such as age discrimination).  The cautious approach of the Member States to age discrimination is not surprising.  Age discrimination is the area where existing national law was most absent.  Whilst Member States have taken measures in recent years to promote the retention in employment of old workers, and unfair dismissal laws occasionally provide protection against age-related terminations, Finland, Ireland and the U.K. appear to have been the only E.U. Member States with wider anti-discrimination laws including age as a prohibited ground.

Ø      The equal treatment Directive 2002/73 of September 23, 2002 to amend Directive 76/207 implementing the principle of equal treatment of men and women in occupation and employment.  New member states had to transpose the provisions of the Directive into national law before joining the E.U.  This Directive is the foundation of E.U. law and policy in the area of gender equality in employment.  Five important tasks are accomplished by this Directive:

·        sexual harassment is defined as a form of sex discrimination: this is a real step forward as sexual harassment in the workplace did not receive serious attention by the E.U. policymakers until then;

·        Member States are required to erect national bodies for the enforcement of equal opportunities and to ensure that judicial and/or administrative procedures are available to all persons who consider themselves wronged or victimized by discrimination in the workplace;

·        excluding women from certain jobs on the basis of their gender requires justification;

·        certain special protections must be granted to women during and after pregnancy.

The equal treatment Directive has been adopted as a result of several amendments to the principle of sex equality after the Treaty of Amsterdam.  This Treaty has inter alia significantly amended the definition of equal pay for equal work to include “or work of equal value” and Article 141(1) finally provided an express legal basis for the Council to adopt measures “to ensure the application of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation, including the principle of equal pay for equal work or work of equal value”.

Despite the above E.U directives, only a few countries were prepared to amend their legislation to fight against discrimination.  The list of countries having specific anti-discrimination legislation before the adoption of the E.U. anti-discrimination Directives corresponds closely with the list of countries who adopted comprehensive legislation to transpose the E.U. Directives (e.g. Belgium, Sweden, the UK, Italy).

The other Member States tried to find some good reasons not to implement the E.U. Directive.  Most of them if not all contented that their constitution or legislation already included provisions to combat discrimination and that therefore they did not need to draft new legislation to comply with the EU Directives.  Some member states tried to rely on specific reasons. For instance, France then considered that its criminal law offered a sufficient level of protection against discrimination.  In Germany, the resistance was quite strong from large corporations and associations of employers which were concerned over employment issues and in particular the implications new laws would have on their recruitment practices.

I.          Improving the arsenal of anti-discrimination in the workplace

I.1     Until 2001, employees in France were protected against discrimination only in the areas of recruitment, disciplinary action and redundancy. At that time, the prohibited grounds for discrimination were comprised in the following exhaustive list: origin, gender, “customs”, family situation, membership of a specific ethnic group, nation, race or religion, political opinions, trade union membership, state of health and disability.

It means for example that age was not then a recognised criterion.  Sexual orientation was only implicit in the “customs” grounds.

The law of November 16, 2001 has clearly broadened the field of prohibited forms of discrimination as the relevant section of the Labor Code (article L.122-45) now reads: “no one can be eliminated from a recruitment process […], no employee can be discriminated, directly or indirectly […] due to his age, sex, lifestyle, sexual orientation, age, family situation, non-membership, whether genuine or assumed, of an ethnic group, nation or race, political beliefs, trade union activities, religious beliefs, physical appearance, patronymic, state of health or disability”.  The French criminal Code includes similar provisions.

Therefore, alongside the “traditional” grounds, new grounds have been taken into account, i.e. sexual orientation, physical appearance (height, weight, attractiveness, etc.) and patronymic.  Moreover, in terms of the criteria of ethnicity, nationality and race, the wording has been altered, and now states that the grounds are “genuine or assumed” membership or non-membership of an ethnic group, race or nation.

More generally, protection against discrimination in the workplace now extends every aspect of working life and covers an employee’s entire career, including where individuals are seeking to be hired or seeking a training period in the company, redeployment opportunities, promotion, geographical re-assignment and renewal of contract.    

Article L.140-2 of the French labor Code states that employers are required to make certain that for the same type of work or work of the “same value”, male and female employees receive equal pay.   Interestingly enough, in companies with at least 50 employees, each year the employer must submit a detailed report to the works council or the personnel delegates comparing the relative situations of male and female employees in the company.  In addition, the report must indicate what measures were implemented during the year to assure professional equality and those proposed for the coming year.  The report is transmitted, together with the comments of the works council, to the labor inspector.  In every company employing more than 200 employees, the works council must create an “Equality Commission” concerning employment, in charge of dealing with the report (Labor Code, Art. L. 434-7).

The report should contain a thoroughly analysis on the situation for each category of employees (men/women, professional levels, types of contract, age) concerning hiring, training, promotions, qualifications, working conditions, remuneration etc, as to:

-         measures taken during the year, in favor of equality;

-         measures planned according to the precedent report which have not been implemented and the reasons for this;

-         measures planned for the coming year; qualitative and quantitative definitions, and evolution of their costs.

1.3       As far as disability is concerned, the French anti-discrimination arsenal was until recently quite poor.  France had even to notify the E.U. Commission that it needed extra time to meet all the E.U. requirements with respect to disability.

Among the main pieces of legislation promoting the employment of disabled people in the workplace, one should mention a 1987 law obliging companies with more than 20 employees to employ 6% of disabled employees (See article L.323-1 of the French labor Code).  However, this requirement is not so frequently fulfilled as employers generally prefer to pay a special contribution to the National Disabled People Agency for each disabled employee that they failed to employ, not to speak of those employers who are even not prepared to pay this contribution and take the risk to pay a penalty equal to the amount of the contribution increased by 20% to the Tax Authorities

Finally, in February 11, 2005, a bill “promoting equal rights and opportunities, participation and citizenship for disabled people” was adopted.  The initiative was developed in the wake of a long process of consultation with disabled advocacy groups and the National Disabled Persons’ Advisory Council (“Conseil national consultatif des personnes handicapées”).  The legislation, which is not limited to disability in the workplace as it more generally deals with the place of disabled in society, includes inter alia provisions to promote the employment of disabled workers in the labor market, such as employers’ requirement to make “reasonable accommodation” for such workers or obligation for employers and trade unions to hold regular negotiations on disability-related issues.

The notion of “reasonable accommodation” is not defined in the new law.  However, we may assume that a French labor court will look at all the circumstances of the case before making a decision as to what constituted “reasonable accommodation”.  For instance, judges could take into account the financial costs of the accommodation, the resources of the employer, practicability of the accommodation.  If a court infers from the facts that the accommodations are not “reasonable” as they put a disabled person at a disadvantage in comparison to a non-disabled person, the employer could probably be held liable on the grounds of indirect discrimination.

II.                Examining and analyzing the French laws on harassment

Psychological harassment:

Under Article 2-3 of the framework Directive, harassment is defined as “any form of unwanted conduct related to any of the grounds referred to in Article 1 [which] takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment”.  For instance, this ensures that where attitudes to a person’s disability cause a negative work environment, this activity may amount to harassment.

So far, France strongly opposes the notion of “hostile environment” in the workplace and is consequently challenging the implementation of the EU Directive.

The French legislation only prohibits “quid pro quo” harassment.  Under Article L.122-49 of the labor Code, which introduces the concept of psychological harassment in the French labor Code, “repeated actions whose objective or effect is to degrade working conditions so as to impair the rights of the employee and harm his dignity, to affect his psychological or mental well-being or to compromise his professional future constitute acts of psychological harassment”. 

Like the European definition, the French one does not state who may be considered as a harasser.  This definition has a broader scope of application than the previous one, which stipulated that only “an employer, its representative or anyone abusing the authority conferred upon them” could be held liable for psychological harassment.  It means that under the previous definition of psychological harassment, the harasser necessarily was the employer or its representative, whereas in the new one it can also be a colleague, a subordinate employee, a client or any other business contact which would include any other person with whom the employee could reasonably be expected to be in contact with.

A point similar to the EU and the French definitions of psychological harassment is that there is no definition of what standard is to be used in determining whether harassment has taken place.  Under the current French definition, psychological harassment may be regarded as a repetition of any abusive behaviors, words, acts, writings, which can attack the personality, the dignity or the physical or mental integrity of a person, endanger his/her job or spoil the work conditions through inter alia :

·      incessant criticism;

·      always beginning meetings with the threat of unemployment or constant threatening dismissal;

·      repetition of a simple instruction hundreds of times for a simple task to the point where the employee is emotionally shaken, or giving of confusing and contradictory instructions;

·      permanent physical isolation from other co-workers and clients;

·      deprivation of office space;

·      overload with work or prevent continuity of work;

·      not saying hello and preventing colleagues from having lunch with the employee;

·      substantial modification of the work conditions.

Whatever the motives or means, the defining characteristic of psychological harassment is the harasser’s willingness to “break” an employee through persecution on a day by day basis in order to force him/her to resign or to make a fault which will justify his/her dismissal afterwards.  Generally, the victim chosen is isolated from the group without any explanation and subjected to hostile behavior, ridiculed, shamed, disqualified in front of his or her peers.  The peer group out of fear of unemployment and of being shamed in turn, together with constant pressure to increase productivity, breaks off ties with the victim and even reproduces the attitudes of the attacker at the workplace thereby creating a collective silence and tolerance for such behavior while the victim becomes gradually more destabilized and fragile.

This kind of treatment endangers a person’s identity, emotional ties and social relationship.  It can be seriously detrimental to one’s physical and mental health.   In the most serious cases, the employee who is victim of psychological harassment may succumb to depression and even commit suicide.

Any termination of a contract of employment resulting from psychological harassment is null by operation of law (See Article L.122-49 of the labor Code).  An employee who is guilty of psychological harassment may also be liable to disciplinary and criminal sanctions (one year of imprisonment and/or a Eur. 15,000 fine – Code of Criminal Law, new Article L.222-3-2).  The criminal sanctions also apply to the employer.

Sexual harassment:

Sexual harassment was introduced into the French legislation prior to the implementation of the Equal Treatment Directive of September 23, 2002. 

The 2002 Directive defines sexual harassment almost in the same way as the definition contained in the framework Directive, i.e. "any form of unwanted verbal, non-verbal or physical conduct of a sexual nature occurring, with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment".  This concept of harassment is similar to the concept of harassment of a sexual nature under the U.S. law.

It is important to note that the Directive prohibits both “quid pro quo” and “hostile work environment” harassment.  Hostile work environment related to sexual harassment is addressed in the definitions described above with the reference to the creation of “an intimidating, hostile, degrading, humiliating or offensive environment”. 

Unsurprisingly, France is not prepared to implement the Directive as it is currently stated due to the express reference to the notion of “hostile environment” in the workplace.

Under article L.122-46 of the French labor Code, an employee, an applicant for recruitment, internship or training must not be punished, dismissed or discriminated against in terms of remuneration, training, (re)classification, status, qualification, promotion, transfer and contract renewal for having been subjected to or having rejected acts by another in order to obtain favors of a sexual nature for himself or for a third party. No one must be punished, dismissed or discriminated against for having given testimony of these acts or for having mentioned them.

Words with a sexual connotation by management are insufficient per se to support a sexual harassment claim before French labor Courts if those statements did not result in a particular professional damage for the plaintiff.  To be successful before French courts, the plaintiff must prove that she was adversely affected in her working conditions as a result of the sexual harassment acts (e.g. ineligibility to promotion, decrease in her remuneration …). 

For this reason, lawsuits based on sexual harassment are relatively infrequent in France.

III.       Easier reporting of discrimination cases in court

The intention of the French Parliament when passing the law of November 16, 2001 was clearly to facilitate claims for discrimination and the referral of such cases to the labor courts.  That is why the main employers’ association in France (MEDEF) had vigorously opposed the bill as they expressed the view that employment relationship could become increasingly litigation based.

Burden of proof:

The first directive dealing with the burden of proof in discrimination cases is Directive 97/80 of December 15, 1997 on the burden of proof in cases of discrimination based on sex, which placed the onus on defendants accused of discrimination at work in civil cases to prove that the principle of equal treatment had not been violated.

Article 8 of the Race Directive requires Member States to take such measures as are necessary, in accordance with their national legal systems, to ensure that when alleged victims of discrimination establish facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment. 

A key point of the French anti-discrimination regulation deals with the amendment of the provisions on the burden of proof in discrimination cases.  The burden of proof for proving a discriminatory act no longer lies solely with the employee.  If an employee or a job applicant (or a union or association acting on his behalf), who feels that he has been discriminated, presents evidence “that leads one to believe that direct or indirect discrimination has taken place”, the employer must demonstrate that its decision was justified “according to objective facts that had no connection with any form of discrimination”.  In other words, in this case, the employer must prove that its decision was consistent with business necessity and independent of the prohibited bases for discrimination.  For example, where substantial evidence demonstrated that a 58 year old employee’s termination was due to his insubordination, a French labor court has no valid reason to admit his claim for age discrimination.   If an employer successfully establishes business necessity, an employee cannot prevail by demonstrating that an alternative and effective business practice exists that would have a less discriminatory effect.

The burden of proof has also been amended in the same way in suits over sexual discrimination regarding salary levels, which marks a fuller transposition into French law of the EU Directive of 15 December 1997 on the burden of proof in cases of discrimination based on sex.

            Facilitating the bringing of claims of discriminatory actions:

The law of November 16, 2001 aims at facilitating the referral of such cases to the courts

In particular, labor inspectors have received extended powers for their investigations so that discriminatory actions can be brought to light.  They can obtain access to any documents or pieces of written oral or recorded information that could be useful in gathering evidence in order to enable discrimination to be proven.

The right to bring a court case over a discrimination claim has been extended to trade unions, provided that they are either nation-wide representative or representative in the relevant workplace.  Proceedings can be started even without written instructions from the victim, unless the latter, who has to be informed in writing by the union, expresses disagreement within fifteen days.  This provision extends to all types of discrimination and is to be found in Article L 123-6 of the Labor Code concerning occupational equality between women and men.

Furthermore, associations legally established for at least five years, and whose mission is to combat discrimination can take a case to court on behalf of an applicant for a job or a training course, or on behalf of a company employee on the condition that there is a written agreement from the person concerned.

Improved monitoring rights for employees’ representatives:

Employees’ representatives are also entitled to bring a matter to the notice of management when they believe that there is an infringement of people’s rights or individual freedoms.  It is worth noting that the notion of “people’s rights or individual freedoms” has been extended to all discriminatory measures relating to recruitment, pay, training, redeployment opportunities, posting, grading according to qualifications, promotion, geographical re-assignment, renewal of contract, disciplinary action and redundancy.  Should management fail to take any steps to combat the discriminatory act(s) brought to its knowledge, the employees’ representatives may initiate summary proceedings.

Employees who bring court cases alleging discrimination are protected from dismissal and discriminatory action.  Moreover, witnesses of instances of discrimination are protected: “no employee can be subject to disciplinary action, be dismissed or be subject to a discriminatory act for having testified to, having witnessed discrimination or having talked about it”.

IV.       Sanctions:

Directive 2002/73 forbids Member States from capping compensation or reparation to victims of discrimination, including psychological or sexual harassment, except in “cases where the employer can prove that the only damage suffered by an applicant as a result of discrimination within the meaning of the directive is the refusal to take his/her job application into consideration”.

Unlawful discrimination in the U.K. workplace may result in significant awards of compensation for the employee.  However, much of continental Europe has focused on the use of criminal law as a means for countering ethnic discrimination. 

France is a good example.  The criminal Code is providing a general definition of discrimination (Art. 225-1):

“Any distinction perpetrated between natural persons on the grounds of origin, sex, family situation, state of health, disability, customs, political opinions, union activities, membership or non-membership, real or supposed, of a particular ethnic group, nation, race or religion constitutes discrimination.

In France, employers can end up in prison (up to two years in addition to a fine of Eur. 30,000).  Any infraction of sexual discrimination rules or rules prohibiting discrimination against victims of, or witnesses to, sexual harassment is punished by fines of up to € 3,750 and/or imprisonment for up to one year. Infraction of equal pay rules are punished by a minor fine.  The judge imposing these penalties can suspend application of the fine or sentence pending the employer’s re-establishment of sexual equality in the workplace.

However, the use of criminal law does not necessarily appear a significant alternative in light of the few criminal convictions.  In Sweden for example there have only been a handful of convictions (1 to 2 per year at most).  In France, in 2002 only 29 individuals (against 3 in 1997) had been convicted on the grounds of discrimination by criminal courts.

Furthermore, any dismissals on discriminatory grounds as well as any dismissal based solely on the fact that the employee has brought a legal case alleging that he is a victim of discriminatory action is null and void by operation of law.   In such cases, the French labor Code gives courts authority to order the employee’s reinstatement, provided that it is requested by the plaintiff in court as he will be regarded as never having left the job.  If the employee does not want to continue with the employment contract, he is eligible for damages on the grounds of both unfair dismissal and discrimination.  However, punitive damages are not allowed in France.

A new sanction was introduced in September 2004 against those found guilty of racial discrimination.  This consists of obliging them to go on a citizenship course (stage de citoyenneté) which is aimed at making them aware of the importance of diversity in society, tolerance for others and respect for human rights. (Decree n° 2004-1021, September 27, 2004).

V.                 Reconciling the competing interests of discrimination and health and safety requirements in the workplace – to what extent can employers “justify” discriminatory practices on various grounds, including health and safety issues?

The Health and Safety Committees are established in companies employing at least 50 employees.  These committees play an important role by fulfilling various tasks contributing to the protection of the health and safety of the employees in the establishment, including proposing preventive actions in relation to psychological and sexual harassment and conducting sexual and psychological investigations in cooperation with the employer (L.236-2)

The aim of taking preventive steps is to ensure that psychological or sexual harassment does not occur and, if its does, to ensure that adequate procedures are readily available to deal with the problem and prevent its recurrence.

The human cost of psychological harassment (from nervous breakdown to suicide) but also the economic costs (owing to the medical psychological cures and the related absenteeism) are becoming very high.  Companies that tolerate psychological harassment may suffer low employee morale, higher absenteeism, lower productivity, and high employee turnover, not to mention financial disaster if victims decide to sue.

It is incumbent upon the employer under his general obligation of security in the workplace to take all necessary steps in order to prevent psychological harassment.  

Companies must establish rules prohibiting all forms of psychological harassment (See Article L.122-34 of the labor Code as amended) and employee representatives have seen an increase in their powers in this field as their right to modification is now extended to cases of harassment (See article L.422-1-1 of the labor Code as amended). 

Discriminatory practices may be authorized by the law in particular when “justified” on health and safety issues and hence constitute exceptions to the principle of equality and non-discrimination.

Provisions on maternity protection may put the principle of professional equality out of balance in relation to the other employees. Article L 125 – 25 to L. 125 – 32 of the Labor Code contain measures to protect the pregnant woman, such as temporary change of post, non-discrimination in the hiring of pregnant women, authorization for absence because of medical visits etc.  Specifically, it is illegal for an employer to take account of the fact that a female job applicant is pregnant in hiring employees. 

Pursuant to article L.122-25 of the French labor Code, an employer may not use an employee’s pregnancy as a reason for breaching an employment contract during a trial period or to justify the transfer of an employee to a different position in the company.

One may recall that during the SARS epidemic, employers had been allowed to ask employees not to go back to work upon return from Asia.  Employers’ decision was then justified on health and safety grounds.

Needless to say, discrimination may be justified on grounds unrelated to health and safety issues.  Generally speaking, French anti-discrimination law permits positive discrimination when it is for general interest purposes based on public employment policy (e.g. encouraging insertion of an age group in the labor market or preserving employments …).

For instance, French law includes some measures to discourage employers to terminate “old” employees.  Terminating an employee who is 50 or over is more costly than terminating an employee who is younger as the employer will have to pay a special contribution which may amount up to 12 months gross salary to the French unemployment Fund.

However, unlike the U.S. Age Discrimination in Employment Act, which prohibits discrimination against applicants or employees aged forty or over because of age, the French labor Code does not stipulate a general non-discrimination rule based on a pre-determined age, and only some provisions explicitly refer to age.  With the exception of the rules setting a minimum age for entry into employment (currently 16) or imposing restrictions on the performance of work by young people under the age of 18, age-discrimination is, in most cases, treated as a violation of freedom of labor, which is a constitutional right.

Furthermore, employers can, within the framework of a “professional equality plan” take measures on a temporary basis in favor of women, in the hiring process, training, promotion, organization and conditions of work.  The law is not imposing any specific obligations concerning the form or content of this plan, but do provide some guidelines on what measures could be integrated in an equality plan, e.g.:

-          certain positions are reserved to women, that is, only women can be hired into these positions;

-          certain forms of training are proposed to women only;

-          settling the objective to nominate women to certain positions;

-          modifying the working conditions on certain positions to make these better accessible for women.

The Race Directive also discriminates in favor of the EU citizens as the prohibition of racial discrimination is “without prejudice to provisions governing the entry and residence of third-country nationals […] and to any treatment which arises from the legal status of the third-country nationals”.   In other words, the Race Directive does not forbid discrimination against third-country nationals (e.g. US citizens) as regards their access to employment and occupation.

VI.              Formulation and implementation of diversity policies – do they unlock merit and individual potential and minimize discrimination claims – or do such policies risk positive and/or unlawful discrimination claims – the relevance of corporate social responsibility.

Under French law, employers are required to have a special provision in the company’s Rules of Procedure document (namely “Règlement Intérieur”) making it clear that psychological and sexual harassments are prohibited in the workplace. 

The “Rules of Procedure” document is a regulated set of measures taken in application of health and safety standards as well as employees’ right to be protected as a victim of or a witness to harassments.  Any provisions in that document that are considered inconsistent with the French employment law requirements are necessarily void by operation of law.  

The “Rules of Procedure” document becomes applicable only after being submitted for an opinion to the works council or, in its absence, to the personnel delegates.  In addition, all matters relating to health and safety must be approved by the health and safety committee.  Any amendments must also be submitted.

If harassment is prohibited as a principle, the French employment law remains silent on how sexual harassment might be prevented.

Handbooks and codes of conduct may be interesting tools to deal with the various steps to be taken in case of an investigation on an employee’s complaint for discrimination.

In particular, handbooks can provide some guidelines on how:

-          the investigators on the management and the employee sides will be appointed;

-          the so-called harasser as well as the so-called victim and the witnesses will be heard;

-          the investigators’ written statements will be drafted and released to the parties.

The binding effect of handbooks in France remains uncertain at this point in time as it is not a regulated document.  French management is not in a position to oblige employees to agree with their terms and conditions.

However, it is highly recommended to submit the draft handbook to the works council’s opinion.  Furthermore, instead of requesting each employee to acknowledge receipt of the handbook, a general memorandum informing all the employees of the implementation of the handbook can be hand-delivered to each of them and posted in various places of the company, including the board reserved to the Management notifications.

The above suggested steps are somewhat formal and constraining.  However they must be taken into account if the French management wants to take advantage of the provisions of the company policy against an employee who is in breach.  

IV.    Implementation of discrimination and harassment policies – do companies need individual policies for different jurisdictions, or can they rely on one single global policy?

If one acknowledges that regulations on discrimination and harassment may vary considerably from one jurisdiction to another because they are typically based on the host country’s culture, it should be agreed that global companies cannot rely on one single global policy.

Although laws that prohibit sexual harassment in the workplace are common to many industrialized countries and have been recognized in a number of international treaties (e.g. the E.U. Directive of September 23, 2002), regulation may vary considerably from one jurisdiction to another.

Furthermore in some jurisdictions, in particular in Europe, discrimination and harassment regulations are public policy provisions that can never be circumvented.

The first objective of a company is to be able to take advantage of its discrimination and harassment policies rather than relying on a global policy which will be enforceable in no other jurisdiction than the US.

Therefore, discrimination and harassment policies must be drafted in full compliance with the local employment law if it is the US company’s intention to implement them overseas.  To do so, the company will have to replace any references to US law by references to French law where applicable. Furthermore, many provisions of the original policies, in particular those dealing with discipline and health and safety issues, will have to be removed as they should be addressed in the Rules of Procedure document.

The company policy adapted to the French legal context must be submitted to the review of the works council.

VII.                       Why are certain types of discrimination claims on the increase?

French courts but also Spanish or German courts are not overwhelmed by discrimination claims.

An explanation specific at least to the French situation may be found in the idea that taking account of minorities may undermine the unity of a nation and the principle of Equality inherited directly from the French Revolution in 1789.  One may recall the embarrassment of the French Authorities when dealing with the issue of the Islamic scarf at school.

However, things are changing under the influence of the E.U. Directives and the obligation for France to implement them.

In France, it is the discrimination issue as a whole which is on the increase with a priority given to combat racist and sexist discriminations.  This is not so surprising given the privileged position enjoyed by these two forms of discrimination in international law (e.g. the U.N. Convention on the Elimination of Discrimination against Women and the U.N. Convention on the Elimination of Race Discrimination).

Recent interest of French Authorities in combating discrimination may be found in the establishment of a French Equal Employment Opportunity Commission.

Until recently, France had a number of separate equality institutions dealing with anti-discrimination issues.  However, following the EU Directive 2000/43/CE of the 29^th of June 2000, which makes it compulsory to establish an independent authority to deal freely with the issue of discrimination, the French Parliament has established an independent administrative authority, namely HALDE (“Haute Autorité de lutte contre les discriminations et pour l’égalité”), responsible for combating all forms of discrimination, whether direct or indirect, including psychological and sexual harassments. 

With the setting up of this new body, equality protection should move from the traditional field of employment to the important new field of the provision of goods, services or facilities and that includes education.  The new Authority is allowed to conduct independent investigation on any discrimination cases that would be notified to its services and to provide assistance to victims of discrimination in pursuing their complaints about discrimination.  Furthermore, victims of discrimination can refer their matters to the Authority, where they are provided assistance in pursuing their complaints about discrimination.

The new authority has competence to deal with any matter of discrimination, direct or indirect, forbidden by the national laws or through any national agreement of which France is a party.

The new Authority has no power of enforcement but is entitled to require individual and entities (whether private or state owned) to communicate any relevant information and data.  Serious cases brought to the Authority’s knowledge can be reported to the Public Prosecutor. 

Interesting enough, the Authority is entrusted with powers to settle disputes and to prepare reports and recommendations to the Parliament and the Government on issued relating to discrimination.  Law nr 2004 – 1486 of the 30^th of December 2004 is establishing the new Authority, which came into force on January 1^st, 2005. 

Another proof of the French interest in combating discrimination can be found in the  “Social Cohesion Plan” concerning work, lodging and equal opportunities (“Plan de Cohésion Sociale – emploi, logement, égalité des chances”), which was established on February 9, 2005 by the French Labour Ministry.[1]  The plan consists of the mobilization of all economic and social actors related to social exclusion, unemployment and discriminations in the society.

Furthermore, a National Agency for Reception and Migrations (Agence National d’acceuil et de Migrations – ANAEM) will be operational from April 2005.

A National Conference on equal opportunities (Conférence nationale pour l’égalité des chances) was held on February 3, 2005 under the hospices of the Premier Minister and has permitted to mobilize social workers for the objective of equal opportunities in the French society.