CMS Expert Guide on discrimination in the workplace in France

Non-discrimination is mentioned in various provisions of the French Labour Code with the major principle expressed in Article L.1132-1 of the Code. This article states that no employee may be excluded from a recruitment procedure, sanctioned, dismissed or subject to any direct or indirect discriminatory measure, notably with respect to remuneration, profit sharing, free shares, classification, qualification, professional promotion, transfer and renewal of contract. 

Moreover, under Article L. 1142-2-1 of the French Labour Code, no person may suffer sexist conduct, defined as any conduct related to the gender of a person, whose purpose or effect consists of harming this person’s dignity or creating an intimidating, hostile, demeaning, humiliating or offensive environment.

Specific parts of the French Labour Code are dedicated to equality between women and men, and the employer has various obligations in this respect. 

The prohibition against discrimination applies equally to all kinds of employees whether on indefinite, fixed-term, or part-time employment contracts, and to trainees and job applicants. It does not, however, apply to platform workers.

The characteristics protected are numerous: origin, sex, morals, sexual orientation, gender identity, age, family situation or pregnancy, genetic characteristics, particular vulnerability resulting from economic hardship, true or supposed belonging or non-belonging to an ethnic group, a nation or an alleged race, political opinions, trade union activities, religion, last name, physical appearance, place of residence, ability to speak in a language other than French, bank domicile, health and loss of physical ability. 

French courts extensively apply anti-discrimination rules when the facts show evidence of a difference of treatment at work. Employees are therefore encouraged to bring an action before the labour courts. If a tribunal finds that an employer has been guilty of discrimination, then any measure taken in breach of the principle of non-discrimination are null and void. In particular, if an employee is dismissed for a reason linked to a characteristic protected by law, the employee can ask for reinstatement in the company and/or bring a claim for damages. There is no set amount of damages for discrimination claims. 

Employees also have the possibility of bringing criminal action since breach of the principle of non-discrimination is also punishable by criminal sanctions: a fine (of up to EUR 45,000 for the individual responsible and EUR 225,000 for the company) and imprisonment for up to three years. 

Employees can also seek assistance from the Defender of Right, which is an independent administrative authority in charge of defending and facilitating access to rights for victims of discrimination in France. This authority, however, only has the power to issue recommendations. 

There is no obligation to put in place a specific policy, but the ‘internal regulations’ that companies and establishments with 50 or more employees must draw up, dealing with matters such as health and safety, and discipline, must provide a reminder of the provisions related to sexist conduct.

There is an obligation for training in any company with more than 300 employees or that specialises in recruitment; employees in charge of recruitment must receive training on non-discriminatory hiring at least once every five years. 

Other obligations mostly relate to equality between women and men. In particular, employers employing more than 50 employees are required to negotiate a collective agreement on professional equality goals and on the measures to enable the achievement of these goals. In the absence of unions, an action plan must be drafted. Failure to be covered by such an agreement or action plan may result in liability for the employer and financial penalties.

There is no legal requirement in France to have a D&I Policy. It is a best practice, but it seems that at this stage, mainly large corporations have drafted such a policy. 

France launched a diversity charter in 2004. Approximately 4,500 organisations, primarily small or medium-sized companies and public institutions, have signed the charter. In 2008, France also launched a diversity label (Label Diversité) to prevent discrimination and promote diversity in the private and public sectors. Signing this charter or applying for the diversity label is not mandatory and is done on a voluntary basis only. 

There is no specific risk since there is no requirement to have such a policy. But new generations are more likely to enter companies promoting an inclusive work environment so the establishment of this policy should increase a company’s attractiveness.

Moreover, the existence and content of D&I Policy can play a role in evaluating the company’s responsibility in cases of alleged discrimination.

A law dated 5 September 2018 introduced an obligation on companies with at least 50 employees to publish each year a gender equality index on their website. The score of the equality index is based on several indicators, such as salary gaps, the difference in men and women’s rates of individual salary rise, the difference between women and men’s promotion rate, the percentage of women who received a salary increase in the year following their return from maternity leave and the percentage of female employees among the ten highest salary levels. Each of these indicators represent a different number of points for an overall result out of 100. Companies must reach a minimum score of 75 points each year. If a company does not obtain at least 75 out of 100 points, corrective actions and potential wage catch-up measures must be implemented to eliminate gender pay gaps. Companies that do not have satisfactory results may be liable for financial penalties of up to 1% of their wage bills.

Under Article 9 of the EU's General Data Protection Regulation (GDPR), ‘data revealing racial or ethnic origin’ or data concerning health or sexual orientation shall be regarded as special categories of personal data and due to their sensitivity can only be processed under strict conditions and for specific purposes provided in Article 9(2) of the GDPR.

Gender

In France, gender quotas have been implemented since January 2011. The law requires that (i) all listed companies, and (ii) non-listed companies with more than 500 employees or revenues above EUR 50 million, have a minimum of 40% of women on the board of directors. Additionally, this law provides that a concerned company may not have a differential of more than two in the number of each sex where its board has a maximum of eight members. Sanctions for non-compliant firms are of two types: the appointment of directors in violation of the law is voided, and the payment of attendance fees is suspended. On 24 December 2021, France adopted a new law to promote gender equality in the workplace. This law imposes quotas for the representation of women in the leadership positions of large corporations, defined as corporations of 1,000 or more employees. By 1 March 2026, at least 30% of managerial positions in these companies, as well as 30% of the seats on these corporations’ governing bodies, must be filled by women. By 1 March 2029, these quotas will be raised to 40% for both managerial positions and governing bodies. Companies will have a grace period of no more than two years following each of these deadlines to comply, beyond which they will be subject to financial penalties that could go as high as 1% of the company’s wage bill. 

Disability 

Where a company employs at least 20 employees, disabled workers must represent 6% of the workforce. The employer may fulfil this obligation by paying an annual contribution to the French association ‘Agefiph, which’ promotes the employment of disabled workers.

Under French law, the only corporate governance rules relating to diversity and inclusion are on gender equality. Specifically, this is the 40% quota of members of each gender required on the boards of directors and supervisory boards of (i) companies listed on the stock exchange, or (ii) companies that, for the third consecutive financial year, employ an average of at least 250 permanent employees and have a net turnover or balance sheet of at least EUR 50 million.