Government and social partners cooperate to tackle racial discrimination

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At a round-table meeting held on 11 May 1999 at the Ministry for Employment and Solidarity, the government and social partners launched a new stage in the fight against racial discrimination at the workplace in France. This initial meeting concluded with the unanimous endorsement of a joint declaration on racial discrimination tabled by the Minister for Employment and Solidarity, Martine Aubry. The Minister also proposed amendments to legislation, designed to make it easier to bring cases in the courts in the event of discrimination. The social partners made a commitment to work together to address all types of discrimination, though they unanimously rejected the creation of a new independent administrative authority in this area.

The various types of discrimination based on racial or ethnic origin have long prompted legislative action in France. In general terms, racial discrimination can be defined as any action or attitude resulting in the prejudicial treatment of certain individuals with common characteristics on the grounds of their nationality, ethnic origin, colour or religion. In terms of the law, the prohibition in principle of discrimination derives from the fact that discrimination is based on an illegitimate criterion of distinction resulting in prejudicial treatment. International law has defined what constitutes prohibited forms of discrimination. The United Nations' 1965 International Convention on the Elimination of All Forms of Racial Discrimination sets out the principle of the prohibition of "any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life".

Section 225-1 of the French Penal Code defines discriminatory acts punishable by law as "discrimination based on ethnic origin, or on membership (or non-membership), perceived or real, of an ethnic group, national community, race or religion, whereby goods and services are refused, the normal exercise of economic activity is hindered, employment is refused, individuals are disciplined or dismissed, or discriminatory conditions are placed on the provision of goods and services or offers of employment." Nevertheless, intent to commit an offence is central to the rationale forming the legal basis of this definition. In reality, racial discrimination is not always premeditated and may equally be a consequence of behaviour resulting from entirely unrelated reasons. In effect, discrimination encountered by foreigners or individuals of foreign origin arises from a range of attitudes and motives prevailing among those who perpetrate it (according to a 1998 report on discrimination by the High Commission for Integration (Haut conseil à l'intégration)).

Joint declaration agreed

In recent years, numerous reports have underscored the spread of racial discrimination and many of them have highlighted racism in the workplace. In late 1998, aware of the scope of the phenomenon, the government took a stand in the debate by seeking to launch an effective and aggressive attack on situations which challenge the fundamental values of French democracy. This resulted in the announcement of the setting up of a "discrimination observatory" (FR9811141N) and the commissioning of the report delivered in April 1999 by Jean-Michel Belorgey, studying the efficiency of French government services in this field, entitled "Fighting discrimination" (Lutter contre les discriminations) (FR9904179N). Then, on 11 May 1999, the Minister for Employment and Solidarity, Martine Aubry, organised a round-table meeting to discuss racial discrimination in the workplace with the CFDT, CFE-CGC, CFTC, CGT, CGT-FO and UNSA trade union confederations and the CGPME and MEDEF employers' organisations.

The parties unanimously endorsed a joint on racial discrimination, which reasserts and advocates the effective implementation of the principles of equality, non-discrimination and secularism on which the French Republic is founded. The declaration recognises that "discrimination is a complex phenomenon: prior to employment, it affects training, placements and summer jobs; in the world of work, it can prevent access to employment and hamper career development, access to certain positions, rights and responsibilities; it is often reflected in acts that insidiously exclude those who are discriminated against; it can result in certain tensions in labour relations. Discrimination spares no social groups, from low-skilled workers to young university graduates, and strikes young and old alike. Finally, discrimination affects foreigners or those whose origin, family name or physical appearance leads others to perceive them as foreign." The declaration also stresses the collective responsibility of society as a whole, which is liable to the victims for the flouting of the principles of democracy. Action is called for. The "Grenelle declaration," which seeks to be the embodiment of a common commitment to address racial discrimination, is intended to result in action.

The social partners rejected unanimously the idea of creating a new independent administrative authority in the area of racial discrimination, Such a body, acting as an intermediary between victims and the justice system, was a major proposal of the recent Belorgey report, and received the support of anti-racist organisations.

Five areas of action proposed

At the May meeting, the social partners were invited to comment on five areas of action presented by the Minister for Employment and Solidarity, prior to inclusion in draft legislation.

1. Gaining a better understanding and knowledge of discriminatory practices. A taskforce on discrimination (groupe d'étude des discriminations- GED) taking the form of a "public interest grouping" (groupement d'intérêt public, GIP) will act as an "observatory". Its role will be to undertake studies and implement awareness drives in order to examine, enhance knowledge of, and more fully understand racial discrimination. The observatory will look at all areas of French society and, in particular, jobs, housing, relations with public services, culture and education. The social partner organisations which so desire will work together in order to work out the details of cooperation within the framework of the new taskforce on discrimination.
2. Mobilising and reinforcing the training of all public and private sector actors on fighting discrimination. The Minister for Employment sent a circular to the public employment services on 20 October 1998, and another to the Labour Inspectorate on 2 April 1999, setting out policies and priorities for 1999. For the first time, addressing racial discrimination in the workplace features prominently among these priorities, alongside and at the same level of importance as reducing working time, combating abuses of flexibility within firms and preventing industrial accidents. In light of the fact that fear and ignorance are breeding grounds for racism and discrimination, training for the various actors in dealing with discrimination is an extremely important concern. This involves informing and increasing the awareness of those working for the National Employment Agency (Agence nationale pour l'emploi, ANPE), the National Association for Adult Vocational Training (Association Nationale pour la Formation Professionnelle des Adultes, AFPA) the decentralised services of the Ministry for Employment and Solidarity and youth centres, and also union activists and company employees.
3. Developing a"mentoring"scheme for young people during their first steps to employment. "Mentoring" is envisaged as a customised support scheme for young people who experience difficulties in integrating into the labour market, which operates during their search for employment and during their first few weeks on the job. It will be provided by volunteers, company employees or newly-retired workers. Those young people involved will come from immigrant families or disadvantaged areas, or have a low level of training.
4. Making the fight against discrimination part of contracts signed between individual cities and the state. Foreign residents or people of immigrant origin represent nearly 40% of the population of under-privileged urban areas covered by state urban policy. The meetings of inter-ministerial committees on urban policy held in June and December 1998 included discrimination among the priorities of the upcoming contracts to be signed between the state and individual cities covered by the government's urban programme. The appraisals currently being carried out prior to city contract negotiations will take account of the problems faced by people of immigrant origin, in particular in relation to access to jobs. Furthermore, integration of immigrants into the job market and the struggle against discrimination will feature as priorities in the mandate given to departmental prefects for the negotiation of the next set of contracts.
5. Putting forward legislative amendments to make the fight against racial discrimination more effective. Possible amendments include:
   • the possibility for unions to bring cases of discrimination to a court of law, as provided for in section L.123.6 of the Labour Code. This would mean allowing a representative trade union organisation in a given company to make a complaint on behalf of an employee who claims to have suffered discrimination, if the employee does not object;
   • amendments to the rules concerning burden of proof. The Minister is not in favour of simply reversing the present rules, but rather of altering the burden of proof regulations in favour of the complainant by extending the proof requirements currently in force in cases of redundancy or disciplinary action to disputes arising from discriminatory behaviour;
   • the setting up of an "early warning" and referral system which would give workforce delegates the right to sound the alarm when a case of racial discrimination is identified in the workplace;
   • the possibility for labour inspectors to impose sanctions in the case of racial discrimination offences in the workplace; and
   • raising the profile of fighting discrimination through collective bargaining. The social partners should be allowed to deal with this issue without making it a mandatory part of negotiations.

Social partners' responses

All the social partner organisations signed up to the principle of a common commitment. Nevertheless, they are divided on the specific measures to be implemented. There is no unanimous agreement on the legal initiatives proposed. On the employers' side, MEDEF stated that "simply increasing the number of repressive provisions, in particular in the Labour Code, which are the source of needless and costly labour disputes, will not magically put an end to discrimination in recruitment. Therefore, an amendment to the Labour Code designed to reverse the burden of proof would be for us the example of what should not be done. We can beat racial discrimination only by attempting to change people's mindsets."

The trade unions have differing opinions. CGT and CFDT, which have long been committed to combating racial discrimination, are in favour of changes to the Labour Code, while CGT-FO does not "totally" support the idea and CFE-CGC opposes it. CFTC would like to see the scope of collective bargaining extended to include the fight against discrimination. Despite their differences, there was consensus on the issue of unions being able to bring cases of discrimination before a court of law. CFE-CGC considers that the government "has not only the possibility but also without a doubt the duty to undertake actions to raise awareness in the French population as a whole about the need to combat, in its everyday attitudes, discrimination based on ethnic origin, religion or membership of an ethnic group". CFE-CGC, along with CGT-FO, would have liked the round table to discuss all types of discrimination at the workplace - that based on sex, disability or religion, as well as race.

Commentary

There is a tendency nowadays for discrimination on the grounds of either perceived or real foreign origin of individuals living in France to be trivialised. While it is difficult to estimate the increase in numbers of cases, discrimination is no longer a taboo and is sometimes openly articulated with total disregard for the fundamental tenets of the law. Ironically, the political parties have kept a low profile on the issue of racial discrimination, which is however, attracting more and more concern in the workplace. Through their initiaitive launched at the round-table meeting in May, the government and social partners have ushered in a new stage in the fight against racial discrimination at the workplace in France. (Mouna Viprey, Ires)