Diversity and inclusion: prohibiting a type of hairstyle can be discriminatory

The requirements of the steward's profession do not justify prohibiting men from wearing hairstyles that are permitted for women. This is what the French Supreme Court has recently ruled in a decision rendered on November 23, 2022.

The Court has indeed ruled on the concept of direct discrimination based on the physical appearance and gender of the employee, considering that the social perception of the physical appearance of male and female cannot constitute a genuine and determining professional requirement justifying a difference in treatment relating to hairstyle between women and men.

The case concerns a steward working for the airline Air France. The employee, hired in 1998, presented himself at the boarding gate in 2005 with African braids tied in a bun. His employer refused access on the grounds that such a hairstyle was not authorized by internal rules for male flight attendants.

The airline's rules for flight crews included the following instructions:

• For men: "Hair should be styled in an extremely tidy manner. Hairstyles are limited in volume and must be kept natural and homogeneous. Length is limited at the nape of the neck to the upper edge of the shirt."
• For women: "African braids are allowed as long as they are held in a bun."

Claiming to be a victim of discrimination, the employee brought a claim before the Courts in January 2012. On April 13, 2012, the employer notified him of a 5-day unpaid suspension for not complying with the internal rules. On February 17, 2016, the employee was declared definitively unfit to work as a flight attendant, due to a depressive syndrome recognized as an occupational disease by social security authorities and dismissed on February 5, 2018, for being permanently unfit to work.

Considering that he had been the victim of discrimination, the steward sought damages on this basis. The Labor court and then the Court of appeal rejected his claim, on the grounds that the presentation of flight personnel (in contact with customers) was part of the airline's brand image and that this brand image. They also found that the difference in hairstyles between men and women was based on customary codes.

The question put to the French Supreme Court was therefore the following: does it constitute discrimination on the basis of gender for an employer to restrict the freedom of male employees regarding their hairstyle?

Referring in particular to Articles L 1132-1 and L 1133-1 of the French Labor Code (which transcribe into French law the principle of equal opportunity and equal treatment of men and women in matters of employment, as set forth in Directive 2006/54/EC of July 5, 2006), the French Supreme Court recalls that differences in treatment on the basis of gender must be justified by the nature of the task to be performed, must meet a genuine and determining professional requirement and must be proportionate to the aim sought. They must therefore refer to a requirement that is objectively dictated by the nature or conditions of the professional activity performed.

The Court deduced that the prohibition for male of a hairstyle authorized for female staff, constituted discrimination based directly on physical appearance in relation to gender.

It considers that, on the one hand, it is the uniform that allows customers to identify the flight personnel, and, on the other hand, that social codes are not objective criteria that justify a difference in treatment between men and women. Taking into account a common social perception of the physical appearance of males and females is not an objective requirement for the performance of the steward's duties.

Note that in a previous case, the French Supreme Court recognized direct discrimination based on physical appearance in relation to gender in prohibiting a waiter in a restaurant from wearing earrings (Cass. soc. 11-1-2012 no 10-28.213 FS-PB).

This decision is a perfect illustration of the importance for employers to take into account diversity and inclusion in their organization.