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November 2001 saw the adoption in France of a new law to prevent discrimination at the workplace. The legislation adds new prohibited grounds of discrimination (including age and sexual orientation), adjusts the burden of proof in discrimination cases and makes it easier to bring court cases.
On 6 November 2001, after 13 months of discussion, the National Assembly passed a bill on combating discrimination at the workplace (FR0011198N), which forms part of the current Socialist-led government's programme of anti-discrimination measures. The new law supplements the existing provisions of the Labour Code, on the basis of both EU Directives and French case law, in order to provide better protection for job applicants and employees throughout their careers. Article L.122-45 of the Labour Code, which defines the various forms of discrimination, is expanded and reworked to broaden its field of application and amend the provisions on the burden of proof so that they are more favourable to the employee.
The list of prohibited grounds for discrimination previously provided for - including origin, sex, family situation and membership of an ethnic group, nation or race - is now expanded to include physical appearance (height, weight, attractiveness etc), surname, sexual orientation and age. Martine Aubry (the Minister for Employment and Solidarity until 17 October 2000) stated that 'all victims of discrimination, women, people with disabilities, foreigners and immigrants, gay men and lesbians' must be given the message 'that our Republic is there to ensure that their rights are respected'. She labelled all forms of discrimination 'unacceptable violence'.
The introduction of the principle of no discrimination based on age aims to bring French law into line with EU Council Directive 2000/78/EC of 27 November 2000, establishing a general framework for equal treatment in employment and occupation (EU0102295F). However, the criteria for applying this principle are detailed in order to avoid a challenge being mounted to employment policies targeted on certain age groups.
The relevant section of the Labour Code now reads: 'No person can be eliminated from a recruitment process (...) due to their 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, surname, state of health or disability.' Moreover, the definition of discriminatory practices provided by Article L. 122-45 of the Labour Code has been broadened to cover an employee's entire career. From now on, the ban on discrimination extends throughout a person's working life, covering: recruitment; access to a placement or in-company training programme; pay; training; redeployment within a company; posting; qualifications; job classification; promotion; transfer from one workplace to another; and renewal of contract.
A key point of the new law deals with the amendment of the provisions on the burden of proof in discrimination cases. The burden of proof has been amended so that if a legal case is brought, it is no longer only the employee's responsibility. Hitherto it had been the responsibility of the employee to prove that he or she had been the victim of discrimination, hence the very low number of successful convictions. The burden of proof will now fall equally upon the employer.
Employees or job applicants who feel that they have been discriminated against must present the court with evidence 'that leads one to believe that direct or indirect discrimination has taken place'. In the light of this evidence, it is up to the defendant to 'prove that the decision taken was justifiable according to objective facts that had no connection with any form of discrimination'. It is the judge's task to arrive at a conclusion, if needs be after having ordered 'any preliminary investigations deemed useful'. This measure complies with the case law of the French Supreme Court of Appeal (Cour de cassation) and the European Court of Justice (ECJ), and transposes into French law EU Council Directive (97/80/EC) of 15 December 1997 on the burden of proof in cases of discrimination based on sex.
The new law aims to facilitate the bringing of claims of discriminatory actions and the referral of such cases to the courts. Labour Inspectors have received extended powers for their investigations so that discriminatory actions can be brought to light. Among other powers, they can have access to any document or information which might be useful in identifying facts liable 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 have representative status either nationally or in the relevant workplace. They can act for an employee claiming to be the victim of discrimination without having to have a mandate to do so from the interested party, as long as he or she has been given written notification and has not opposed the union action by the end of a 15-day period. Non-governmental organisations working in the anti-discrimination field can also act for a plaintiff, if they have been legally constituted for at least five years and have the written consent of the interested party.
The right of workforce delegates to bring a matter to the notice of company management when they believe that there is an infringement of people's rights or individual freedoms, is extended to cases where a workforce delegate identifies a discriminatory measure. Moreover, sector-level collective agreements must now include a clause on dealing with racial discrimination before they can be extended (ie applied compulsorily to non-signatory employers). Finally, for civil servants, the principle of banning discrimination has been established, although they are not covered by the new burden of proof system that has been implemented in the private sector.
The General Confederation of Labour (Confédération générale du travail, CGT) deems the new anti-discrimination law to be 'an extra tool to be wielded immediately (...) The extension of sanctions to cover new grounds for discrimination will enable action to be taken in new areas.' However, it regrets that 'concessions have been made to the employers (...) allowing certain type of age discrimination to continue.'
As far as the French Democratic Confederation of Labour (Confédération française démocratique du travail, CFDT) is concerned, the new law 'is a useful addition to existing legislative measures and effectively affords greater leverage for action on this issue', but the opportunity should be 'taken to do more and do better', and the high levels of unemployment among non-EU nationals and young people from immigrant backgrounds 'shows the necessity of implementing tougher measures for integrating people into the workforce and providing access to employment'.
The General Confederation of Labour-Force ouvrière (Confédération générale du travail-Force ouvrière, CGT-FO) welcomed the new provisions, especially the opportunity for unions present in the workplace or with representative status nationally to go to court on behalf of an employee claiming discrimination.
For the National Federation of Independent Unions (Union nationale des syndicats autonomes, UNSA), the adoption of the law marks a serious step forward. It underlined in particular the noticeable increase in the powers of the Labour Inspectors and the option for unions and organisations with recognised authority in the field to go to court for employees claiming discrimination.
The new law, sponsored by the (Socialist) chair of the National Assembly's Social Affairs Committee, Jean Le Garrec, slots directly into the government's proactive policy on discrimination, launched in March 2000 by the 'General Conference on Citizenship' ('assises de la citoyenneté') and other measures to fight racial discrimination (FR0004155N).
According to the deputy in charge of presenting the bill to the National Assembly, Philippe Viulque, the new law 'aims to act as a warning against odious practices', given that two out of 10 employees feel that they have been discriminated against during their working lives. It will not, he stated, resolve all the difficulties involved in bringing 'often surreptitious' forms of discrimination to light, but its main virtue is its dual 'deterrent-supressive' nature. Mr Viulque indicated that 'some companies, particularly in the temporary agency work sector, have already reviewed their recruitment procedures and brought in 'good practice charters', in anticipation of a potential rise in claims that the new law might trigger off.' (Mouna Viprey, IRES)